Anthony v. Bank of Wiggins

• Decision Date: 21 November 1938
• Docket Number: 33350
• Citation: 184 So. 626,183 Miss. 885
• Court: Mississippi Supreme Court
• Parties: ANTHONY et al. v. BANK OF WIGGINS

184 So. 626

183 Miss. 885

ANTHONY et al. v. BANK OF WIGGINS

No. 33350

Supreme Court of Mississippi, Division B

November 21, 1938

(Division B.)

1. LIMITATION OF ACTIONS.

Where bank foreclosed deed of trust lien and purchased realty at foreclosure sale, suit to cancel mortgagor's claim of title and to confirm title of bank was not barred by statute of limitations because not brought until more than six years after due date of note, since bank was entitled to such relief at any date subsequent to sale unless relief should have become barred by limitation of adverse possession (Code 1930, sec. 2292).

2 HOLIDAYS.

As respects validity of trust deed foreclosure by bank, under the provisions of the Trading With the Enemy Act which was limited in its application to the period of the World War the President of the United States was without authority on March 6, 1933, to issue proclamation closing all banks in the United States and prohibiting them from transacting any banking business whatsoever, since there was no authority in the President to issue such proclamation until March 9, 1933 (12 U.S.C. A., sec. 95).

3 HOLIDAYS.

Where the President of the United States was without authority on March 6, 1933, to issue proclamations closing all banking institutions in the United States and prohibiting them from transacting any banking business whatsoever, the approval by Congress on March 9, 1933, of the President's action in closing banks did not have retroactive effect of rendering illegal banking business such as foreclosure of trust deed which had been legally transacted on March 6, 1933 (12 U.S.C. A., secs. 95, 95a).

4 MORTGAGES.

Ordinarily mere inadequacy in price alone will not be sufficient to warrant setting aside foreclosure sale in absence of fraud or unfair advantage.

5. MORTGAGES.

A trust deed foreclosure sale could not be set aside for inadequacy of price, in absence of showing of fraud or unfair advantage, where indebtedness held by mortgagee against land including interest and taxes amounted to as much as land was shown to be worth, mortgagors were totally insolvent, no deficiency judgment was taken against them, and indebtedness to mortgagee was barred by statute of limitations (Code 1930, sec. 2292).

HON. D. M. RUSSELL, Chancellor.

APPEAL from the chancery court of Stone county, HON. D. M. RUSSELL, Chancellor.

Suit by the Bank of Wiggins against Abel Anthony and others for cancellation of defendant's claim to realty and confirmation of title or for foreclosure of security against realty. Decree for plaintiff, and defendants appeal. Affirmed.

Affirmed.

T. J. Wills, of Hattiesburg, for appellant.

The court will observe that appellants were brought into court at the suit of appellee. That all they filed were defensive pleadings. They asked for no affirmative relief, sought only to have the court leave them unmolested and undisturbed. As defensive pleadings they were entitled to invoke every right accruing to them under the law. Their first defensive assertion was that the sale of the land by the trustee was void for two reasons. First, because it was made at the instance of the bank, purchased by the bank in violation of the Presidential Proclamation, which had the effect and force of law, at the time the sale was made. Second, because the price paid by the bank was so grossly inadequate as to shock the conscience of the court and to render the sale null and void.

On March 6, 1933, under the provisions of Section 5 B of the Act of Congress of October 6, 1917, 40 Statutes at Large 411, the President of the United States issued a proclamation in which he closed all banking institutions in the United States and its insular possession and prohibited all banking transactions during the holiday period. The proclamation prohibited all banks from transacting any business, the exact language being "or transact any other banking business whatsoever." See United States Code Annotated, Title 12, page 353, published after October, 1936. This proclamation issued March 6, 1933, was on March 9, 1933, approved, ratified and confirmed by Act of Congress. Section 95 United States Code Annotated, Title 12. The presidential order was valid and binding on all banks.

It is a well settled principle of law that all acts done in violation of law or contrary to public policy are void.

Perry v. U.S. 294 U.S. 330, 55 S.Ct. 432, 79 L.Ed. 912.

It is equally as well established principal of law that where a person comes into either a court of law or a court of equity and asks for relief and to entitle him to the relief sought he must show an act done or performed by him or a right arising to him out of some violation of law or act contrary to public policy that the courts will not lend its power to his aid.

Jones v. McFarland, 178 Miss. 282, 173 So. 296; Woodson v. Hopkins, 85 Miss. 171, 37 So. 100, 38 So. 298.

This court has held that a sale of land, under a trustee's sale, for $ 100 that had sold back in the flush times for $ 2500 was void.

Blacketor v. Cartee, 172 Miss. 889, 161 So. 696; 179 Miss. 665, 176 So. 532.

The statute of limitation had run before the filing of this suit. The note was given on April 3, 1930, and matured April 3, 1931. This suit was filed on May 5, 1937. The six year statute of limitation would have expired on April 3, 1937, but for the bank holiday of 4 days, intervening from March 6, 1933, to March 9, 1933, so that the statute of limitation was complete on April 7, 1937.

Section 2314 Code of 1930 has no application for the reason that the unlawful entry and detainer suit was not a suit to collect the note or to foreclose the deed of trust and therefore did not toll the statute.

W. T. Rawleigh Co. v. Barnes, 143 Miss. 597, 109 So. 8.

U. B. Parker, of Wiggins, for appellee.

The President had no authorty to issue such a proclamation. It appears that such proclamation was attempted to be issued under section 95 of the act known as "Trading with the Enemy Act, " which was limited in its application to the World War, and, therefore, would not authorize any such act on the part of the President of the United States at the time and in the manner he issued said proclamation. This is not only plain from the reading of Section 95, found on pages 352 and 353, of Title 12, United States Code Annotated, which authorized no such proclamation or exercise of authority by the President of the United States in the time of peace over state banking institutions; but is demonstrated by the facts found on page 353, Title 12, United States Code Annotated, wherein the President issued his first proclamation number 2039, on March 6, 1933; and at the bottom of the same page, and on the following page, where he issued his second proclamation number 2040, on March 9, 1933, after the Congress had passed an act on that date, being Chapter 1, Section 2, 48 Statute at Large page 1, Section 95 A, Title 12 United States Code Annotated, page 361. In other words, the President and his advisers knew that he had no authority, under section 95, Title 12, United States Code Annotated to issue the proclamation on March 6, 1933. He, therefore, called upon Congress for authority, and such was given him; and, under Section 95 A, supra, he did have authority to issue the proclamation issued on March 9th; and in a desperate effort to try to keep alive and make valid the proclamation made and issued on March 6th, the second proclamation recites that" WHEREAS, on March 6, 1933" such proclamation as is relied on here by appellants was issued and, etc.

We earnestly insist that a careful reading of the law, as found on pages 351 to 361, Title 12, United States Code Annotated, will satisfy the court that the President had no authority to issue the proclamation closing the banks; and, therefore, had the bank remained open it would not have been doing so in utter violation of law.

The Chancellor rightfully stated and held in his opinion that the trustee had put in motion this foreclosure proceeding long before March 6, 1933, by advertising, for the proper length of time, that the sale would be made within legal hours on said day, at the time and place where the sale was made; and appellants were not only there present at the sale, but made no objections at that time, nor at any other time did he make any objections until after appellee was forced into litigation and until the trial of the unlawful entry and detainer proceedings, when, without any plea whatever having been filed in that proceeding, as will be demonstrated by the record in cause number 32688, styled "Abel Anthony et ux v. Bank of Wiggins, " in the Supreme Court of the State of Mississippi, decided on April 12, 1937, and by the record herein.

We say that if the Bank of Wiggins, and all other banks in the United States, had been standing wide open so that every man in the United States who had any money in the bank could have withdrawn it, checked upon his account and dealt out his money as he desired to do so, it would have done appellants no good, because it is shown by this record, and they admit that they had no money and it is not shown by this record that they could have gotten any money anywhere in the world or that they had any prospect of getting any money.

No authority is advanced for the statement and claim that this sale is void because it was advertised for and made on the 6th day of March, 1933, other than that heretofore discussed and condemned; and we are frank to say to the court that no such exists, and that it is the wildest stretch of the imagination to make such a claim.

Anthony v. Bank of Wiggins, 178 Miss. 361.

There are two very recent cases on the subject of sales of land under mortgages on averments of inadequacy of price...