Bank of Lauderdale v. Cole

• Decision Date: 27 March 1916
• Docket Number: 17408
• Citation: 111 Miss. 39,71 So. 260
• Court: Mississippi Supreme Court
• Parties: BANK OF LAUDERDALE ET AL. v. COLE ET AL

71 So. 260

111 Miss. 39

BANK OF LAUDERDALE ET AL. v. COLE ET AL

No. 17408

Supreme Court of Mississippi

March 27, 1916

APPEAL from the chancery court of Wayne county, HON. T. A. WOOD Chancellor.

Suit by the Bank of Lauderdale and others against Mrs. Ruby E. Cole and others; judgment dismissing generally as to plaintiff E F. Ballard and without prejudice as to plaintiff, R. W Fagan, and plaintiff's Bank of Lauderdale and E. F Ballard appeal.

On the 25th day of January, 1908, E. F. Ballard and R. W. Fagan sold to appellee W. J. Cole certain real property, executing a deed thereto at Cole's request to his wife, Mrs. Ruby E Cole, one of the appellees herein. The consideration expressed in the agreement was four thousand dollars, but the deed contained no recital indicating whether this consideration had been paid. The real consideration was two thousand dollars in stock, par value, of the Waynesboro Brick & Manufacturing Company, and two notes of one thousand dollars each, due one in two and the other in three years from the dates thereof. The note first to mature was delivered by Ballard, after its indorsement by himself and Fagan, to the appellee Bank of Lauderdale, and upon its maturity, being presented to Cole for payment, he declined so to do; whereupon this suit was instituted upon both notes by the bank, Ballard, and Fagan against W. J. and Mrs. Ruby E. Cole, praying that said notes be decreed to be a lien on the property conveyed by Ballard and Fagan to Mrs. Cole, and that it be sold to satisfy such lien. Appellees by their answer alleged that the vendor's lien had been expressly waived by Ballard and Cole at the time the land was purchased, and that in addition thereto the notes had been materially altered after their execution and without appellees' consent. The cause came on to be heard on bill, answer, and proof; and a decree was entered adjudging that the notes had been materially altered by Ballard without the consent of appellees, but also without the knowledge or consent of Fagan. The bill was dismissed generally in so far as it was predicated upon the note held by Ballard, and without prejudice as to Fagan. The reason the bill was dismissed without prejudice as to Fagan was that the note owned by him had not matured when the suit was instituted, and consequently was held by the court below to have been prematurely brought. From this decree an appeal was prosecuted by the bank and by Ballard, Fagan accepting the decree, and not appealing therefrom. Cole, by his evidence, admitted the execution of the notes, but stated that he declined to purchase the land unless Ballard and Fagan would waive any lien thereon securing the notes, which they expressly agreed to do, accepting as security therefor a number of shares of stock in the Waynesboro Brick & Manufacturing Company; that the note first to mature when signed by him read as follows:

"No. . Waynesboro, Miss., Jan. 25th, 1908. On or before two years after date, I, we, or either of us promise to pay to the order of E. F. Ballard and R. W. Fagan, Due . One thousand and no/100 dollars, for value received, with interest at the rate of eight per cent per annum after date until paid. And in event default is made in the payment of this note at maturity and it is placed in the hands of an atty. for collection or suit is brought on the same, then an additional amount of ten per cent on the principal and interest of this note shall be added to the same atty's. fees. All signers to this note are principals. Negotiable and payable at the Bank of Waynesboro, Waynesboro, Miss. Address, City. W. J. Cole."

The second note contains identical language, except that it was to mature in three instead of two years after date.

Cole further testified that after the execution thereof, and without his knowledge or consent, these notes...