Hataway v. Est. of Nicholls, et al.
| Docket Number: | 2003-CA-02321-SCT Linked Case(s): 2003-CA-02321-SCT ; 2003-CA-02321-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 02-17-2005 Holding: Affirmed |
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| Additional Case Information: |
Topic: Wills & estates - Partition sale - Letter of guarantee - Section 75-5-102(10) - Clear title Judge(s) Concurring: Smith, C.J., Waller and Cobb, P.JJ., Easley, Dickinson and Randolph, JJ. Non Participating Judge(s): Diaz and Graves, JJ. Nature of the Case: CIVIL - WILLS, TRUSTS, AND ESTATES |
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| Trial Court: |
Date of Trial Judgment: 09-10-2003 Appealed from: Warren County Chancery Court Judge: William Willard Disposition: Entered a consent judgment. Case Number: 00-390GN |
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| Note: | The motion for rehearing is granted. The original opinion is withdrawn, and this opinion is substituted therefor. "Certificate of Vicarious Compliance" filed by Martin A. Kilpatrick and Linton C. Kilpatrick will be treated as a motion for leave to withdraw as counsel of record for the appellant and as such, is granted. Martin A. Kilpatrick and Linton C. Kilpatrick, individually, and as members of the Law Firm of Martin A. Kilpatrick and Linton C. Kilpatrick, P.A., are relieved from any further responsibility in prosecuting this appeal on behalf of the appellant, Freddie Dabney Hataway, Co-Executor of the Estate of Eloise W. Dabney. The appellant, Freddie Dabney Hataway, shall be allowed to proceed pro se in this case; and the Clerk shall mail a copy of this order to all counsel of record and to the appellant, Freddie Dabney Hataway, at her mailing address as indicated in her pro se response filed on January 4, 2005. Motion for rehearing filed by appellees is granted. | |
| Party Name: | Attorney Name: | |||
| Appellant: | Freddie Dabney Hataway, Co-executor of the Estate of Eloise W. Dabney |
PRO SE |
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| Appellee: | Estate of Mary Dabney Nicholls, Deceased, David H. Dabney and Eloise Dabney Lautier | WILLIAM M. BOST, JR. |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Wills & estates - Partition sale - Letter of guarantee - Section 75-5-102(10) - Clear title |
| Summary of the Facts: | The motion for rehearing is granted, and this opinion is substituted for the original opinion. Three of the heirs of the Estate of Eloise Dabney filed a Complaint for Partition of four parcels of commercial land. A consent judgment was reached with the fourth heir and a special master was appointed to conduct a sale to the highest bidder for cash. There were two bidders at the sale: the fourth heir and an attorney representing a third-party buyer (who also represented the three heirs). The fourth heir submitted a bid of $72,000, which was rejected by the special master who found that the “letter of guarantee” submitted by the fourth heir from Bancorp South was not for cash. The property was then sold to the other bidder for $60,000 by way of the attorney’s trust account check. The court subsequently granted summary judgment and confirmed the sale. The fourth heir appeals. |
| Summary of Opinion Analysis: | Hataway argues that her “letter of guarantee” was sufficient under sections 75-5-101 to -118 and that it was “no less ‘cash’ than the $60,000 uncertified trust account check. Section 75-5-102(10) defines a letter of credit as a definite undertaking that satisfies the requirements of section 75-5-104 by an issuer to a beneficiary at the request or for the account of an applicant or, in the case of a financial institution, to itself or for its own account, to honor a documentary presentation by payment or delivery of an item of value. Here, the letter specifically stated that the Bank guaranteed that the good funds will be made available upon receiving clear title to the above referenced parcels and the letter was specifically addressed to the special master. Had the special master accepted the letter and delivered clear title, the Bank would have been required to make payment in an amount up to $72,000. Although under certain circumstances, the Bank’s letter would as a matter of fact and law be considered a bid for cash, the special master was not required to accept the letter since the letter contained a condition which could not be met. When trustees or special commissioners or masters are conducting public sales, they may convey only such title as is vested in them in that capacity. That power and authority quite often will render them incapable of conveying “clear title.” In its judgment appointing a special master and directing a partition sale, the chancery court ordered that the special master deliver a special master’s deed to the highest bidder for cash. Nowhere in this judgment or any other order did the chancery court direct the special master to deliver “clear title” to the successful bidder. |
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