The fee was given to Mrs. Gray's children, if any. If she died without children, or child, then the donor provided in the deed that the fee should go to his heirs. er v. Richardson, 96 Miss. 394, 50 South. 447. | death. owned an undivided three-fourths interest in the land. Appellee answered the petition, and denied that petitioners, the Alexander heirs, ever acquired title to the land through the deed made in 1859 by their ancestor, Amos Alexander, deceased. We take the following from the brief of counsel for appellee, to show the special defense in the case which we are now considering: "That the sons and daughters of Amos Alexander, the donor, who were living at the time of his death, alone, were entitled to said land, as ulterior limitees in said deed, and that the conveyance by said Virgil Alexander, Austin Alexander, and Amos Alexander, in 1861, to their sister, the life tenant, vested in her the whole interest in said land, except as against said Laura Baker, daughter of the donor, who never conveyed away her interest, and that consequently the Alexander heirs never acquired any title to, or interest in, said land." On the final hearing the chancellor denied the relief sought by petitioners and dismissed their petition, and from that decree this appeal is prosecuted. [1] Appellants contend that the words "lawful heirs" were intended to include the heirs of Mr. Alexander who were living at the time of the death of Mrs. Gray, the life tenant, and not those living when he died. The contention of the appellee is: (1) That the provision in the deed, making the donor's heirs the ulterior limitees, was void because he could have no heirs while living, and because it is a settled rule at common law that a person could not make a conveyance or devise of the same estate in lands which his heirs would take by descent, directly or by way of remainder to such heirs, for the reason that an estate by inheritance was esteemed to be of higher dignity; (2) or if such provision was valid by virtue of the "two donee" statute in this state (section 2765, Code of 1906), that the words "lawful heirs" referred to and included those of the donor's heirs who were living at the time of his death, and that at all events upon his death the ulterior limitation provided in the deed vested at once in his sons and daughters. If appellee's first contention is right, then the sons when they executed the deed had a right, title, and interest in the land by way of reversion. Under the second contention they would be remaindermen. We note in their deed that they transfer all their right, title, and interest "in remainder or reversion," and they also state therein that they convey all of their right, title, and interest "as remaindermen or heirs at law of Amos Alexander." We also note in the petition filed by appellants that it is stated that the interest which the three sons attempted to convey was their interest in remainder or reversion," and, further, in the petition the rights of appellants in the land is referred to as their "reversionary rights." It is unnecessary for us in this consideration to determine which of the two views of the law presented by counsel for the appellee is correct, for it appears to us that the three sons of the donor, upon the death of their father, owned right, title, and interest in the land which they could transmit by deed during the lifetime of the life tenant, and that this is so whether we term them reversioners or remaindermen. They had more than a bare possibil The question for our determination is, Didity; they had also an interest. At the very the three sons of Amos Alexander in 1861, when they executed their deed to their sister, Mrs. Gray, own such right, title, and interest, in the land as could be alienated by them? The entire estate was in Amos Alexander, the ancestor, when he disposed of his property by deed in 1859. He then conveyed a life estate in the land to his daughter, Mrs. Gray, at the same time reserving to himself the ti least they had a possibility coupled with an [2] The ascertainment of who were the heirs of the donor must be referred to the time of his death, and not to the time of the tion appears in this case. When their father died the three sons took, as his heirs, an interest in his estate. This was subject to be defeated by the death of Mrs. Baker, the life tenant, leaving issue. This did not happen. The estate which they received upon the death of their father was never defeated or changed. Appellants were not heirs of the donor, Amos Alexander, when he died. Their fathers, the donor's heirs, were heirs. They conveyed their right, title, and interest. Appellants, the children, never acquired any right, title, or interest in the land in controversy. The chancellor did not err in dismissing their petition. Affirmed. YAZOO & M. V. R. CO. v. DUKE. (Supreme Court of Mississippi. Nov. 24, 1913. Action by John Duke against the Yazoo & Mississippi Valley Railroad Company. A judgment for plaintiff was affirmed on defendant's appeal, without written opinion. On suggestion of error. Suggestion sustained in part, and cause affirmed, on condition that plaintiff enter a remittitur. This is an action for libel by appellee, who recovered a judgment for $10,000. The action is based upon the discharge of appellee, a conductor on a mixed passenger and freight train of appellant, for alleged shortage in accounting for cash fares alleged to have been withheld by appellee in his settlement with the company. Mayes & Mayes, of Jackson, for appellant. McLaurin & Thames and J. D. Thames, all of Vicksburg, for appellee. PER CURIAM. Affirmed. On Suggestion of Error. COOK, J. We have given the suggestion of error a very careful consideration, and are yet unable to find any error of law in this record. Upon the suggestion that the verdict of the jury was excessive, we have reached the conclusion that this is true. The evidence did not, in our opinion, justify the amount of damages awarded by the jury, and it is ordered that the case be affirmed, if the appellee enters a remittitur of all of the judgment except $5,000; otherwise, the case is reversed and remanded for a retrial of the issue of the amount of damages alone. JAMES SUMRALL LUMBER CO. v. TYRONE et al. (No. 16,220.) (Supreme Court of Mississippi. Feb. 2, 1914.) Appeal from Chancery Court, Jefferson Davis County; R. E. Sheehy, Chancellor. Action between the James Sumrall Lumber Company and Mrs. M. E. Tyrone and others. From the judgment, the Lumber Company appeals. Affirmed. (Supreme Court of Mississippi. Dec. 15, 1913.) Appeal from Circuit Court, Tunica County; Manuel Gills was convicted of robbery, and appeals. Dismissed. Hathorne & Hearst, of Hattiesburg, for ap-T. B. Watkins, Judge. pellant. J. E. Parker, of Prentiss, for appellees. PER CURIAM. Affirmed. PER CURIAM. Appeal dismissed. Mayes & Mayes, of Jackson, for appellant. DOBBINS & CANTRELL. THOMPSON. (No. 16,159.) (Supreme Court of Mississippi. Jan. 26, 1914.) Appeal from Circuit Court, Pike County; Paul B. Johnson, Judge. Action between Dobbins & Cantrell and M. L. Thompson. From the judgment, Dobbins & Cantrell appeal. Affirmed. R. L. Bullard, of Laurel, for appellants. Currie & Currie, of Hattiesburg, for appellee. PER CURIAM. Affirmed. MEYER v. GEO. F. DITTMAN BOOT & SHOE CO. (No. 16,173.) (Supreme Court of Mississippi. Jan. 26, 1914.) Appeal from Circuit Court, Pike County; D. M. Miller, Judge. Action between David Meyer and the Geo. F. Dittman Boot & Shoe Company. From the judgment, Meyer appeals. Affirmed. R. W. Cutrer, of Magnolia, for appellant. J. B. Sternberger, of Magnolia, for appellee. KAUFMAN v. EQUITABLE LIFE INS. SOC. (No. 16,309.) (Supreme Court of Mississippi. Jan. 26, 1914.) Appeal from Chancery Court, Lowndes County; J. F. McCool, Chancellor. Action between Henry H. Kaufman and the Equitable Life Insurance Society. From the judgment, Kaufman appeals. Affirmed. Wm. Baldwin, of Columbus, for appellant. Sturdivant, Owen & Garnett, of Columbus, for appellee. PER CURIAM. Affirmed. LACEY LUMBER CO. v. POITEVANT & FAVRE LUMBER CO. (No. 16,224.) (Supreme Court of Mississippi. Jan. 26, 1914.) Appeal from Chancery Court, Pearl River County; R. E. Sheehy, Chancellor. Action between the Lacey Lumber Company and the Poitevant & Favre Lumber Company. Judgment for the Poitevant & Favre Lumber Company, and the Lacey Lumber Company appeals. Affirmed, with remittitur. Mayes & Mayes, of Jackson, for appellant. Bowers & Griffith, of Gulfport, and McDonald & Marshall, of Bay St. Louis, for appellee. PER CURIAM. Affirmed, with remittitur. CROSBY v. TOWN OF SUMRALL. (Supreme Court of Mississippi. Feb. 9, 1914.) Appeal from Circuit Court, Lamar County; A. E. Weathersby, Judge. Ed Crosby was convicted of violating an ordinance of the Town of Sumrall prohibiting the sale of liquor, and appeals. Affirmed. Holcomb & Draughn, of Sumrall, for appellant. PER CURIAM. Affirmed. COPELAND v. STATE. (No. 17,092.) (Supreme Court of Mississippi. Feb. 9, 1914.) Appeal from Circuit Court, Kemper County; Thos. B. Carroll, Judge. Pat Copeland was convicted of selling liquor, and appeals. Affirmed. PER CURIAM. Affirmed. WEBB V. STATE. (No. 17,180.) (Supreme Court of Mississippi. Feb. 9, 1914.) Appeal from Circuit Court, Amite County; E. E. Brown, Judge. Carey Webb was convicted of carrying a concealed weapon, and appeals. Affirmed. C. T. Gordon, of Liberty, for appellant. Frank Johnston, Asst. Atty. Gen., for the State. PER CURIAM. Affirmed. No. 19,803. (134 La. 403) ANDRUS v. CORNWELL et al. (Supreme Court of Louisiana. Jan. 5, 1914. Rehearing Denied Feb. 2, 1914.) (Syllabus by the Court.) 1. BANKRUPTCY (§ 419*)—DISCHARGE-ACTION TO SET ASIDE JURISDICTION. Where a United States District Court has granted a discharge to a bankrupt, an action to set aside the discharge on the ground that the bankrupt concealed some of his property must be a direct action brought in the court that granted it, and it is only where the discharge is an absolute nullity that any other court has a right to so declare it. [Ed. Note. For other cases, see Bankruptcy, Cent. Dig. 88 843-852; Dec. Dig. § 419.*] 2. BANKRUPTCY (§ 418*)-RES JUDICATA. Where the trustee of a bankrupt opposes his discharge on the ground that he has failed to turn over property belonging to him, but standing in his wife's name, and the United States court, wherein the bankruptcy is pending, holds that the property is not that of the bankrupt, but that the paraphernal property of the wife, the judgment concludes the trustee. [Ed. Note.-For other cases, see Bankruptcy, Cent. Dig. 88 764-771; Dec. Dig. § 418.*] 3. BANKRUPTCY (§ 417*)—DISCHARGE-ACTION TO SET ASIDE LIMITATION. An action to set aside the discharge of a bankrupt must be a direct action and must be brought within a year of the discharge, and, even if this court had jurisdiction of an action to set aside the judgment of discharge of the United States Court, it could not do so, as more than a year has elapsed since the judgment of discharge was rendered. [Ed. Note. For other cases, see Bankruptcy, Cent. Dig. §§ 867-871; Dec. Dig. § 417.*] Provosty, J., dissenting. Appeal from Eighteenth Judicial District Court, Parish of Acadia, Wm. Campbell, Judge. Action by Martin J. Andrus, trustee, against Mrs. Lavancha M. Cornwell and others. Judgment for defendants, and plaintiff appeals. Affirmed. Smith & Carmonche, of Crowley, for appellant. Shelby Taylor and J. A. Gremillion, both of Crowley (Chappuis & Holt, of Crowley, of counsel), for appellees. BREAUX, C. J. This is a suit by the trustee in bankruptcy of Ellis Cornwell against his wife to compel her to deliver to the bank. ruptcy of Ellis Cornwell, her husband, cer tain grounds and improvements thereon in Crowley in block 6 (125), numbered 8, 10, 11, 12, 13, 14, 15, 16. It is alleged that she claims to have bought these lots from her son, Chamller Cornwell, on the 10th of May, 1899. That, after her purchase, the improvements thereon were constructed. That, although in her name, the property was bought by the community between Ellis Cornwell and his wife, Mrs. Lavancha M. Lyons, for the price and the improvements were paid with community funds. The plaintiff, trustee, asks that this prop erty be declared to be the property of the community and subject to the claim of her husband's creditors. Ellis Cornwell is insolvent, and has been declared a bankrupt upon his own petition. The trustee asks that the property be delivered to him in order that it may be sold by him and the proceeds applied to pay the debts of Ellis Cornwell. The wife, Mrs. Lavancha M. Cornwell, claims the land as her own, also the improvements; she gives the details of the price to show that the land and the improvements were paid for from her separate paraphernal funds, inherited from her father and mother, over which she had complete control and management; that she paid the taxes thereon and always exercised the dominion of an owner over the property. An exception was interposed by the defendants, including the plea of res judicata. They therein, in substance, alleged that on January 17, 1909, Ellis Cornwell was adjudged a bankrupt in the District Court of the United States for the Western District of Louisiana; that on the 23d of February, 1909, he applied for his discharge, which Andrus, trustee, opposed as representative of the creditors, alleging that on November 4, 1910, a judgment was rendered by the Hon. Alex Boarman, judge of the federal court, dismissing the opposition and discharging Cornwell from his debts. In proof of the allegation, plaintiff in exception (defendant in suit) produced copies of the proceedings of the District Court of the United States. The judgment of the federal District Court, dated the 4th day of November, 1910, discharged the bankrupt from all debts provable by act of Congress which existed on the 17th day of January, 1909, on which day the petition for adjudication was filed. On this application for a new trial, the federal judge ordered that the referee take up the matter alleged for the new trial and ordered that evidence be taken. After the evidence had been taken and due proceedings had, the judge of the federal District Court rendered a final judgment, overruling and dismissing the opposition of the trustee and pronouncing the judgment final. The judge of the state district court heard the plea of res judicata, filed before his court in the suit brought therein by the trustee, maintained the plea, and dismissed the suit. The trustee appealed to this court. Plaintiff very earnestly urged that the claim to the property is only colorable, and for that reason the bankruptcy court has jurisdiction to compel the surrender of the property in bankruptcy in order that it may be sold and the proceeds distributed among the creditors. Learned counsel quotes the following in his brief: If there is any case in which it does not possess that power, it is when the claims are apparently bona fide, citing Federal Statutes Annotated, vol. 1, supplement 1912. The principle above laid down is correct; it is only lacking in its applicability to the issues in the present case, for a court of competent jurisdiction has decided that the trustee could not lay hold of the property and has considered and decided all other points, sufficient at any rate to bind the trustee and prohibit him from proceeding in another court to undo that which has been done directly by the bankruptcy court. The court in addition must have concluded that the deed was at least bona fide. [2] The next position taken by plaintiff, the trustee, was: That the property, though in the name of the wife, was presumed to belong to the bankrupt, and that it passed This judgment became effective if no oppo-to the trustee under section 70 of the banksition is filed within twenty days from date of judgment. Defendants pleaded this discharge as res ed by Act Feb. 5, 1903, c. 487, § 16, 32 Stat. judicata. Within the 20 days, Andrus, trustee, filed an opposition to the discharge of the bankrupt, in which he represented: That he filed an opposition to the discharge of the bankrupt on March 23, 1909. That there was a hearing on the opposition in which testimony was taken and submitted to the referee. That a judgment was rendered on the 4th day of November, 1910, discharging the bankrupt. His opposition, filed on November 28, 1910, sets forth that he has the right to a new trial on the ground that the judgment of discharge is contrary to law and evidence; that the property did not belong to Mrs. Lavancha M. Cornwell, although title was taken in her name; but that the property belonged to Mr. Cornwell, the husband, who was not en rupt law. Act July 1, 1898, c. 541, 30 Stat. 565 [U. S. Comp. St. 1901, p. 3451], as amend 800 [U. S. Comp. St. Supp. 1911, p. 1511]. That the trustee could claim the property under the authority of the presumption stated. That the wife was a necessary party in the proceedings in the federal court as on the face of the papers it was paraphernal property. If that court acted upon the theory just stated, it certainly concludes the trustee and renders it impossible for him to maintain the action. As to section 70 of the Bankruptcy Law, cited, the provision of a part of this law is that the trustee is vested with the title to the property of the bankrupt. The court did not take that view as relates to the property of the wife, as it excluded it from the property of the bankrupt. It was certainly excluded in so far as the trustee was concern |