Anger v. Grenada Bank
| Decision Date | 22 December 1924 |
| Docket Number | 24487 |
| Citation | 102 So. 273,137 Miss. 424 |
| Court | Mississippi Supreme Court |
| Parties | ANGER v. GRENADA BANK. [*] |
Suggestion of Error overruled Jan. 3, 1925.
APPEAL from chancery court of Sunflower county., HON. E. N. THOMAS Chancellor
Suit by W. H. Anger against the Grenada Bank. From judgment for defendant, plaintiff appeals. Reversed in part, and affirmed in part.
Judgment reversed in part; affirmed in part.
W. E Hobbs and H. C. Mounger, for appellant.
The first assignment of error is to the action of the court in overruling the demurrer of the appellant to the cross-bill of the defendant. That demurrer is that the cross-bill sets up new and independent facts and raised new and distinct issues and embraced other indebtedness than those named in the original bill, and are not such matters and things as can be properly made the subject of a cross-bill in this suit. Gilmer v. Felhour, 45 Miss. 627; Wright v. Frank, 61 Miss. 32; Fletcher v. Wilson, Freeman's Chancery, 376, 391; Stansel v. Hahn, 96 Miss. 616, 50 So. 696; 21 C. J. 508-9; Magruder v. Hattiesburg Trust Co., 108 Miss. 857; Valentine v. McGrath, 52 Miss. 112; Thomason v. Neeley, 50 Miss. 310.
The second assignment of error is to the action of the court in overruling the objections of the appellant to certain testimony. 1. To the introduction of the deeds of trust recorded in Deed Book Y-5, p. 4; U-5, p. 561; N-3, p. 121; T-5, p. 183; Y-5, p. 8, and the indebtedness secured thereby, for the same reasons as are alleged in the demurrer. They were in no manner germane or relevant to the controversy, and should not have been admitted. These matters did not throw any light on the issue made by the original bill, and tended only to confuse the issue. 2. To the introduction of the charter and by-laws of the Grenada Bank as incompetent and irrelevant, and because further said charter and by-laws are not recorded in Sunflower county, Mississippi. This charter and these by-laws were not public records, but were private records of the Bank of Grenada. The appellant was not charged with any notice thereof, and they were res inter alios acta. The appellant was not a party to them, and was not bound thereby. Moreover, the statutes require that this charter should be recorded in Sunflower county. Section 4017, Hemingway's Code; Section 900, Code of 1906.
It will be seen that the trial of this case traveled far beyond the issue made in the original bill, and dragged in a vast mass of extraneous, incompetent and irrelevant matters, which threw no light on the controversy, did not affect, but tended only to confuse the issue. Evidently the case was not tried on the real issue. The bank would be estopped to set up title in this property. If it has any rights the complainant is entitled to them. If Harrison was buying for the bank, this title cannot be set up against complainant. If the bank has no title now, still it perpetrated a fraud on the plaintiff by which he lost the property. The bank is liable for the fraud and misrepresentation. Cocke v. Kuykendall, 41 Miss. 65; Tobin v. Allen, 53 Miss. 567; Higgins v. Haberstraw, 76 Miss. 634; Albert Mackie & Co. v. Dale, 84 So. 453; Moore v. Crump, 84 Miss. 613; Benbrook v. Yancy. 96 Miss. 536; Dickson v. Green, 23 Miss. 612.
The chancellor did not think that the cashier and the director Harrison, had any authority to bind the bank. Gardner was the assistant cashier, and of course, was the cashier for this branch bank as far as the public was concerned. He had been entrusted with the foreclosure according to his own testimony. The appellant cannot be affected by an secret instructions given Gardner by the president. Grenada Bank v. Moore, 95 So. 449; Williamson v. First National Bank, 90 So. 115; Boyd v. Appelwhite, 121 Miss. 879; Pennington v. People's Bank, 95 So. 694; Fleckner v. Bank of the United States, 8 Wheat. 388, 6 S. & M. 234; Carey v. Cain, 70 Miss. 628, 13 So. 239; Metzger v. Southern Bank, 54 So. 244, 98 Miss. 108.
The admission or declarations of an agent, when made at the time of doing an act in the execution of his authority, are binding on the principal. Belmont Coal & R. Co. v. Smith, 74 Ala. 206; A. G. S. R. R. Co. v. Hill, 78 Ala. 303. But to render the declarations or admissions of the agent evidence against or binding on the principal, they must be explanatory of some contemporaneous act within the scope of his authority, or must be made while in the execution of the agency, forming a part of the res gestae. 1 R. C. L. 508; D. J. Meador & Son v. Standard Oil Co., 72 So. 34; 3 R. C. L. 451; 12 A. R. 72.
The inadequacy of the price is an important feature in this case, taken in connection with all the circumstances. Why there were no bidders has been explained before. Inadequacy of consideration is not alone conclusive of evidence of fraud, but taken in connection with the other circumstances, may be very strong evidence of fraud. Martin v. Swofford, 50 Miss. 328; Dunton v. Sharpe, 70 Miss. 864; Elmslie v. Mayor, 35 So. 202; Weyburn v. Watkins, 90 Miss. 735; Mitchell v. Harris, 43 Miss. 325; Patterson v. Josselyn, 43 Miss. 382; Allen v. Martin, 61 Miss. 86; McPherson v. Davis, 96 Miss. 224; 19 R. C. L. 584; 19 R. C. L. 613.
In conclusion, here is a case where a man's property is sold several years before the principal indebtedness is due and sold because of the non-payment of the interest, when no interest was due. When he had two thousand dollars to his credit in the bank, which should have been applied to the payment of the interest, both because the interest was due, and the principal was not due. Section 2079, Hemingway's Code, section 2681, Code of 1906 provides: "When partial payments are made, the interest that has accrued to the time of payment, if any, shall be first paid, and the residue of such partial payment shall be placed to the payment of the principal." Brooks v. Robinson, 54 Miss. 272.
D. M. Quinn and Forrest G. Cooper, for appellee.
The attorneys for appellant first complained of the action of the lower court in overruling their demurrer to the cross-bill filed by the Grenada Bank. No relief was granted under this cross-bill and it is hard to conceive how the appellant was injured by the cross-bill, even were we to concede that the cross-bill was improper. This is not a suit to set aside a void foreclosure for fraud or deceit. It does not involve merely the foreclosure of one trust deed. It is a suit for damages by the appellant arising out of the alleged handling of real estate held by the Grenada Bank as security and a mere reading of the bill, answer and cross-bill will show that the matters mentioned in the cross-bill are germane to the question considering the amount of damages, if any, or a reduction in the amount of damages the complainant would have recovered if entitled to recover anything. 34 Cyc. 644. It is not necessary to show equity in a cross-bill. Thomas v. Neeley, 50 Miss. 310; 21 Cyc. 644. If the cross-bill is predicated on a demand which grows out of the same subject-matter involved in the original bill, it is proper. Dewees v. Dewees, 55 Miss. 315; Schaff v. Kahn & Bernstein, 83 So. 622, 121 Miss. 412; Irion v. Cole, 78 Miss. 132, 28 So. 803.
The appellant next complains because the court permitted the appellee to introduce several deeds of trust showing indebtedness owing to it by the appellant. In every one of these deeds of trust the appellant had conveyed as security the property, or a part of the property involved in this controversy, although in one of them additional property was involved. Since the appellant is seeking to recover damages because of profits which the appellee is claimed to have made in this property, then these deeds of trust were entirely proper and necessary. In addition they were the backbone of the case as made out by the cross-bill. If the cross-bill was proper then these deeds of trust were proper, but even if the cross-bill was improper, still the introduction of these deeds of trust was proper because when a man is seeking to recover damages on a real estate transaction, evidence of indebtedness owing on the same property by the party seeking damages is admissible.
The appellant contends that the charter and by-laws were inadmissible because the appellant was not a party to them and was not bound thereby. Our answer as to the charter is that it is a public record, being recorded in the office of the secretary of state and likewise in the county in which the Grenada Bank is located. This is a suit against the Grenada Bank and not the Bank of Moorehead, a branch. The Grenada Bank is domiciled in Grenada county and a certified copy of charter and amendments from Grenada county was offered. As to both the charter and the by-laws, we wish only to say that this is a case wherein the Grenada Bank is sought to be held because of certain alleged acts and conduct of an assistant cashier of a branch bank and a director. Since these officers obtain certain of their authority from these documents they were admissible for what they were worth. The appellant argues that the charter would only be admissible if recorded in Sunflower county but, as we read the statute, it is only necessary to have it recorded in Grenada county.
Appellant next contends that error was committed in allowing testimony as to the application of the two thousand dollar payment made by Anger out of a part of the purchase price of property sold to W. D. Corley. In our statement of facts we showed that Anger or his attorney gave no directions as to the application of this payment, but the Grenada Bank did actually apply the payment to the principal. This the bank had a right to do because when a debtor pays money to a creditor and does not direct as to which debt it...
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