This is an appeal from a decree declining to grant the relief prayed for in a bill of complaint, and granting that prayed for in a cross-bill.
The appellants filed a bill of complaint in the court below, alleging that Samuel Thompson, Sr., died intestate in November, 1919, seized and possessed, in fee simple, of certain land, leaving as his heirs, his widow, Sallie Thompson, and two children, Eddie Thompson and Samuel Thompson, Jr., and the appellants who are the children of a daughter of Samuel Thompson, Sr., and his *Page 601 wife, Sallie Thompson, who died in October, 1913; that in August, 1921, Sallie Thompson, Eddie Thompson, and Samuel Thompson, Jr., executed a deed of trust on the land to the Liberty Trust Company to secure an indebtedness due by them to it, which deed of trust was assigned by the Liberty Trust Company to, and is now owned by, the John Hancock Mutual Life Insurance Company; that in January, 1926, Sallie Thompson, Eddie Thompson, and Samuel Thompson, Jr., executed another deed of trust on the land to T.E. Pemble, to secure a debt due by them to him, which deed of trust was foreclosed and the land purchased by T.E. Pemble, who conveyed it to Sarah L. Pemble.
The bill prayed that the deed of trust therein referred to be held to convey only the three-fourths interest in the land inherited by Sallie Thompson, Eddie Thompson, and Samuel Thompson, Jr., from Samuel Thompson, Sr.; for a partition thereof setting apart a one-fourth interest therein to the appellants; and for rent thereon.
All the persons mentioned in the bill were made defendants thereto, the Liberty Trust Company and the John Hancock Mutual Life Insurance Company being nonresidents.
The defendants having failed to appear, a decree pro confesso was rendered against them adjudging that all of them "had been duly served with proper process." Thereafter, final decree was rendered awarding the appellants the relief prayed for. Afterwards, the operation and effect of the decree pro confesso and of the final decree were suspended for sixty days in order that the John Hancock Mutual Life Insurance Company might have opportunity to appear and answer the bill of complaint. Within the time limit, the John Hancock Mutual Life Insurance Company appeared and answered the bill denying that the appellants were the heirs of Samuel *Page 602 Thompson, Sr.; alleging that he left as his sole heirs at law, Sallie Thompson, Eddie Thompson, and Samuel Thompson, Jr.; admitting the execution of the deed of trust by Sallie Thompson et al. to the Liberty Trust Company and the assignment thereof by said company to the John Hancock Mutual Life Insurance Company; that a portion of the money loaned to Sallie Thompson et al. by the Liberty Trust Company was paid, at their request, to the Prudential Insurance Company of America to discharge two deeds of trust executed by Samuel Thompson, Sr., to the Colonial United States Mortgage Company, and which had been assigned to the Prudential Life Insurance Company of America. The prayer of the cross-bill is that, if the deed of trust executed by Sallie Thompson et al. to the Liberty Trust Company, and now owned by the John Hancock Mutual Life Insurance Company, be held to convey only a three-fourths interest in the land, the two deeds of trust executed by Samuel Thompson, Sr., to the Colonial United States Mortgage Company and assigned by it to the Prudential Life Insurance Company of America be revived; that the John Hancock Mutual Life Insurance Company be subrogated to the rights of the Prudential Life Insurance Company thereunder; and that they be foreclosed for its benefit. An amendment to the cross-bill alleged that, at the time the loan was made by the Liberty Trust Company to Sallie Thompson et al., they represented to the company that the appellants were not heirs of Samuel Thompson, Sr., but that they, said Sallie Thompson et al., were his only heirs at law, reinforcing their representation by the affidavits of two responsible men who knew Samuel Thompson, Sr., that such was the fact.
The appellants answered the bill denying the appellee's right of subrogation, and pleading the six-year statute of limitations thereto. Section 2292, Code 1930. *Page 603
The evidence supports the allegations of the cross-bill, but discloses that, when the loan made by the Liberty Trust Company to Sallie Thompson et al. was applied for, the company was advised that Samuel Thompson, Sr., left other heirs; that it then declined to make the loan, but, afterwards, on the representations and affidavits referred to in the cross-bill, agreed to and did make it. The appellants, who were then minors, were, in no way, parties to the making of this loan.
The decree on the cross-bill revives the two deeds of trust executed by Samuel Thompson, Sr., subrogates the appellee thereto, and directs a foreclosure thereof for the benefit of the appellee.
We will pretermit all of the several questions presented by the record, and come at once to the appellant's plea of the statute of limitations. The cross-bill was filed more than six years after the maturity of the debts secured by the two deeds of trust executed by Samuel Thompson, Sr., to which the appellee was subrogated in the court below, and also more than six years after the satisfaction by the Liberty Trust Company of the deeds of trust from Samuel Thompson, Sr., to the Colonial United States Mortgage Company. We will leave the first of these facts out of view and deal only with the second.
Assuming, but solely for the purpose of the argument, that when the Liberty Trust Company satisfied the deeds of trust executed by Samuel Thompson, Sr., to the Colonial United States Mortgage Company, it became entitled to subrogation thereto, and that the appellee is the successor to this right, such right accrued on the payment of the debt secured by the deeds of trust. Partee v. Mathews, 53 Miss. 140. The statute of limitations began then to run against it, and it is now barred, unless, as the appellee contends, the fraud perpetrated upon the Liberty Trust Company by Sallie Thompson et al., by *Page 604 which it was induced to furnish the money with which to satisfy the deeds of trust, brings the case within section 2312, Code 1930. This section reads as follows: "If a person liable to any personal action shall fraudulently conceal the cause of action from the knowledge of the person entitled thereto, the cause of action shall be deemed to have first accrued at, and not before, the time at which such fraud shall be, or with reasonable diligence might have been, first known or discovered."
Assuming also for the purpose of the argument that this case is of the general type contemplated by the statute, in order for such a case to come within it, among other things, it must appear "that these acts of fraud were committed by defendants or some one in privity with them." Jones v. Rogers, 85 Miss. 802, 38 So. 742, 748.
Since the appellants did not participate in the commission of this fraud, the only question is: Are they in privity with Sallie Thompson et al. by whom the the fraud was committed? "By the term `privies,' is meant those who stand in mutual or successive relationship to the same rights of property." Lipscomb v. Postell, 38 Miss. 476, 77 Am. Dec. 651, and H. Weston Lumber Co. v. Lacey Lumber Co., 123 Miss. 208, 85 So. 193, 10 A.L.R. 436.
The appellants stand in no successive relation to Sallie Thompson et al. as to this land, nor is there any mutual relationship between them to the same rights of property. They were not joint tenants, but tenants in common thereof, holding, not "by one joint title and on right," but "by one title and several rights."
The court below should have dismissed the cross-bill.
Reversed and remanded. *Page 605