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Cox v. Trustmark National Bank

February 09, 1999

JOHN COX APPELLANT
v.
TRUSTMARK NATIONAL BANK APPELLEE



Before Thomas, P.j., Lee, And Southwick, JJ.

The opinion of the court was delivered by: Southwick, J.

DATE OF JUDGMENT: 2/11/98

TRIAL JUDGE: HON. PATRICIA D. WISE

COURT FROM WHICH APPEALED: HINDS COUNTY CHANCERY COURT

NATURE OF THE CASE: REAL PROPERTY

TRIAL COURT DISPOSITION: EASEMENT BY NECESSITY DECLARED

DISPOSITION: AFFIRMED - 02/09/99

MOTION FOR REHEARING FILED:

CERTIORARI FILED:

MANDATE ISSUED:

¶1. An easement by necessity was found to exist across the land of John Cox. The easement benefitted a tract once also owned by Cox, but then owned by Trustmark National Bank. While the case was pending, Cox entered a contract for the sale of his tract. At a hearing Cox acknowledged that the sales price was not affected by the possible easement. Since the date of judgment, each party has sold its parcel to the same individual, recombining the two tracts into one common ownership. That extinguishes the easement and the controversy except as to attorney's fees for defending against Trustmark's motion for a preliminary injunction. We find the injunction to have been proper.

STATEMENT OF FACTS

¶2. The two tracts in question total 6.7 acres in Hinds County adjacent to Livingston Road. In 1992 Cox conveyed all of the property to Patricia Jones, receiving a deed of trust to secure payment of the purchase price. In 1994 Jones deeded approximately 2.35 acres out of the total to the Whitney Company, Inc., a corporation owned by Jones and her husband. The 2.35 acres had no frontage with any street. There was testimony that the Joneses planned to develop both tracts for residences. A plat was prepared showing a street to be laid across the retained 4.35 acres that was to be the access to the Whitney Company tract. Trustmark National Bank made loans to Whitney to assist in the development. The Bank was granted a deed of trust on the 2.35 acre parcel and Cox released that tract from his deed of trust.

ΒΆ3. Trustmark foreclosed on the property in May 1997. It then brought suit against Cox and Jones, arguing that an easement should be declared across the 4.35 acre tract that was superior to Cox's deed of trust. Before any hearing was held, Cox foreclosed on ...


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