Anthony v. Bank of Wiggins

Decision Date12 April 1937
Docket Number32688
Citation178 Miss. 361,173 So. 454
CourtMississippi Supreme Court
PartiesANTHONY et ux. v. BANK OF WIGGINS

Division B

APPEAL from circuit court of Stone county HON. W. A. WHITE, Judge.

Suit by the Bank of Wiggins against Abel Anthony and his wife: From a judgment for plaintiff, defendants appeal. Reversed and suit dismissed.

Reversed and suit dismissed.

T. J Wills, of Hattiesburg, for appellants.

The court was without jurisdiction to try this cause for the reason that it was not instituted within one year after the expiration of the right of the defendants to the possession of the said property.

Chapter 69, Code of 1930, section 3456, provides that the remedy of unlawful entry and detainer is available to a person deprived of the possession, who shall bring the proceedings within a year after the expiration of the right of the occupant to the possession of the said property.

Robinson v. Boggan, 97 Miss. 27, 52! So, 705.

The foreclosure sale was void. The trustee's deed to the appellee was void. The bank was never in possession of the property. They, therefore, had not been deprived of the possession, The possession was withheld from it. Its right to possession rested upon the deed and not upon an eviction from the premises. The bank, in order to establish its right to possession of the property, was forced to introduce the trustee's deed. The trustee's deed shows on its face that the sale was made contrary to a paramount law and in violation of a presidential proclamation, issued under the Act of Congress, restraining the bank from transacting any business. The deed was therefore void. It gave to the appellee no right of possession whatever.

Gardner v. Cook, 173 Miss. 244, 158 So. 150.

Another reason why the deed was void, as is shown on its face, is that having been made at a time when all money was locked and sealed within the vaults of the bank, by presidential proclamation, issued under the authority of law, the bank bid in property for which $ 4000 was paid before the improvements were put on it, and property oil which the bank had loaned $ 700, at and for the consideration of $ 75. This consideration of $ 75 under the circumstances is such as would shock the conscience of a court and render the sale and the trustee's deed carrying out the terms of the sale a nullity.

Blacketor v. Cartee, 172 Miss. 889, 161 So. 696.

The court was in error in excluding the testimony offered to show the value of the property at the time of the sale and in refusing to permit counsel, representing the defendants appellants here, to put in the record the facts that he proposed to show with respect to the value of the property.

Gardner v. Cook, 173 Miss. 244.

U. B Parker, of Wiggins, for appellee.

We agree that the cause of action in unlawful entry and detainer must be begun within twelve months after the owner is put out of possession or after the possession of appellant assumed an adverse character to that of the bank, but the facts in this case abundantly show that this cause of action was begun within twelve months. And it is for that reason that we introduce the letter to appellants demanding that possession of the property be surrendered on or before the 15th day of June, 1936; the suit herein having been instituted in the justice court on August 17, 1936, just sixty-two days after this demand was made for possession of the property and such was refused; just sixty-two days after the possession of appellants assumed all adverse character to the right of the appellee.

Williams v. Johnson, 175 Miss. 419, 167 So. 639.

On this record and the holding of this court in Williams v. Johnson, supra, we rest our contention that this suit was brought within the time allowed by statute.

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; 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.

There are two very recent cases on the subject of sales of land under mortgages on averments of inadequacy of price based on general economic conditions, and in both instances the court refused to cancel.

Denson v. Provident Mutual Life Ins. Co., 166 So. 33; Pruitt v. Commercial Nat. Bank of Anniston, 160 So. 540.

We recognize the rule that where the consideration in a trustee's deed to the holder of a, deed of trust is ridiculously inadequate and is accompanied by fraud oppression, or deceit, then the conveyance will be set aside; but in no case has this...

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3 cases
  • Walker v. Acacia Mut. Life Ins. Co
    • United States
    • Mississippi Supreme Court
    • April 12, 1937
  • Anthony v. Bank of Wiggins
    • United States
    • Mississippi Supreme Court
    • November 21, 1938
    ...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. are two very recent cases on the subject of sales of land under mortgages on averments of inadequacy of price based on genera......
  • Ellis v. Knight, 41596
    • United States
    • Mississippi Supreme Court
    • November 21, 1960
    ...within one year after wrongful deprivation or withholding of possession. Section 1049, Mississippi Code of 1942; Anthony v. Bank of Wiggins, 178 Miss. 361, 173 So. 454. But the defendant in such action who claims the action was barred because not brought within one year after wrongful depri......

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