OF JUDGMENT: 10/20/2017
WASHINGTON COUNTY CHANCERY COURT HON. MILLS E. BARBEE TRIAL
ATTORNEY FOR APPELLANT: RENETHA LATRICE FRIESON.
ATTORNEYS FOR APPELLEES: ROBERT N. WARRINGTON ALEXANDRA
BARNES, C.J., GREENLEE AND LAWRENCE, JJ.
This case arose from O'Possum Ridge Farms
("O'Possum Ridge") and Lakeland Farms LLC's
("Lakeland") complaint to confirm and quiet title,
which sought to change the Washington County Chancery
Court's 2003 order conveying property to Irvin I.
Pogue's ("Irvin") wife, Billie Sanders Pogue
("Billie"), as his sole beneficiary. Because the
collateral attack on Irvin's will was improper, we
reverse and render the chancellor's judgment.
AND PROCEDURAL HISTORY
On January 22, 2003, Irvin and O'Possum Ridge entered
into a contract for the sale of approximately 295 acres of
land in Washington County ("the subject property").
Under the contract, O'Possum Ridge agreed to pay $30, 000
at closing and to execute a promissory note in the amount of
$278, 849.52 secured by a deed of trust on the subject
property. The contract also provided that O'Possum Ridge
would take possession of the property upon
Shortly thereafter, on February 8, 2003, Irvin died, and his
will was probated in the Washington County Chancery Court. In
a decree dated July 14, 2003, the court noted that no claims
were probated against Irvin's estate, and the court
granted the executrix, Billie, the authority to convey the
subject property to herself as beneficiary of the will. The
final order closing the estate was titled "Decree
Approving Final Accounting And Discharge of Executor" in
cause number 030208.
Subsequently, on August 20, 2003, O'Possum Ridge executed
a promissory note to Billie, which was secured by a deed of
trust on the subject property for its purchase. Billie was
the beneficiary of the deed of trust. The promissory note was
payable in fourteen annual installments of $30, 000. And on
August 28, 2003, Billie "sold, conveyed, and warranted
all rights, title, and interest" in the subject property
to O'Possum Ridge.
Approximately five years later, in December 2008,
O'Possum Ridge conveyed part of the subject property to
New Lakeland Farms. And in December 2012, New Lakeland Farms
conveyed the land to Lakeland.
In June 2012, Billie died. According to her will, her estate
was to pass to Harvey Tackett Jr. as trustee for The Anne
Ramsey Pogue Trust for her benefit during her lifetime. Anne
was Irvin and Billie's daughter. Billie's will
further provided that upon Anne's death, the estate would
pass to Ophelia Ray (Billie's maid) and James
Harrell. However, Anne predeceased Billie, so in
January 2013, the chancery court entered a decree conveying
the promissory note, deed of trust, and remaining payments
due thereunder to Ray. The decree was entered in cause number
20120990. The chancellor noted that the beneficiaries of
Billie's will were Ray and Harrell and explained that
"[t]he beneficiaries have agreed that this asset shall
become the property of Ophelia Ray."
O'Possum Ridge stated that, at some point, it had sought
financing using part of the subject property as collateral
and became concerned about a potential cloud on the
property's title. According to O'Possum Ridge and
Lakeland, Irvin's will from the 2003 probate action
provided that Billie would receive any portion of his estate
that exceeded the unified credit exemption. Otherwise, the
estate would pass to the Irvin I. Pogue Residuary Trust
("the Trust"). Anne was the initial beneficiary of
the Trust, but upon her death, the assets of the Trust were
to be distributed to the following residuary beneficiaries:
Sarah Dees Marble (Irvin and Billie's niece), Avon United
Methodist Church, March of Dimes Foundation, Mississippi
State University, Woods Junior College, and French Camp
Academy ("the residuary beneficiaries"). Because
Irvin's estate did not exceed the unified credit
exemption, O'Possum Ridge and Lakeland asserted that the
subject property should not have been ordered to be conveyed
to Billie. Rather, O'Possum Ridge and Lakeland asserted
that the chancellor should have ordered that the property
should pass to the residuary beneficiaries.
As a result, on February 4, 2015, O'Possum Ridge and
Lakeland filed a "Complaint to Confirm and Quiet Title,
for Declaratory Judgment, and for Other Relief" in cause
number 20150111. The following persons and entities were
named as defendants: J. Murray Akers (Billie's executor
and trustee under the deed of trust), Ophelia Ray, Rebecca
Gouvier (James Harrell's executrix and beneficiary),
Sarah Dees Marble, Avon United Methodist Church, March of
Dimes Foundation, Mississippi State University, French Camp
Academy, and "any and all persons or parties having or
claiming to have any legal or equitable interest in or to the
In March 2015, Mississippi State University and March of
Dimes filed notices of appearance. Sarah Dees Marble wrote a
letter to the court. And in April 2015, Ray filed an answer
and requested that the court dismiss the complaint.
On September 21, 2015, O'Possum Ridge and Lakeland filed
a motion for summary judgment. They reasserted that the
subject property should have passed to the residuary
beneficiaries, and they requested that the court reform the
promissory note and deed accordingly. O'Possum Ridge and
Lakeland also asserted that they had acquired the subject
property by adverse possession. In addition, they noted that
the action was, in part, an interpleader action. O'Possum
Ridge requested that the court order that the payment due
under the promissory note be deposited into the registry of
the court until it was determined to whom it should be paid.
Finally, O'Possum Ridge requested attorney's fees and
court costs. Rebecca Gouvier, Avon United Methodist Church,
and French Camp Academy subsequently joined the motion.
In January 2016, Ray filed a response to the motion for
summary judgment. Ray argued that there was not a cloud on
the subject property's title. And she also argued that
she had acquired the subject property by adverse possession.
After several hearings, the chancery court entered an order
granting summary judgment in May 2017. The court found that
there was a cloud on the subject property's title and
that O'Possum Ridge and Lakeland had acquired the
property by adverse possession. The court then reformed the
promissory note and deed of trust to reflect that the subject
property should have passed to the residuary beneficiaries.
The court also acknowledged that the action was, in part, an
interpleader action and ordered O'Possum Ridge to deposit
the amount due under the promissory note into the registry of
the court for disbursement to the residuary beneficiaries,
provided that no appeal was perfected. Finally, the court
directed O'Possum Ridge and Lakeland to file an
application for attorney's fees.
Thereafter, Ray filed a motion for reconsideration or, in the
alternative, a motion for recusal. In the motion, Ray
asserted that the chancellor should have recused after he
allegedly engaged in ex parte communications with opposing
counsel. O'Possum Ridge and Lakeland filed a response in
which they denied any improper ex parte ...