Bank of Philadelphia v. Posey

• Decision Date: 10 July 1922
• Docket Number: 22247
• Court: Mississippi Supreme Court
• Parties: BANK OF PHILADELPHIA et al. v. POSEY, Sheriff, et al

92 So. 840

130 Miss. 530

BANK OF PHILADELPHIA et al. v. POSEY, Sheriff, et al

No. 22247

Supreme Court of Mississippi

July 10, 1922

1 PARTNERSHIP. Judgment against partnership is against each of designated members.

A judgment that the plaintiff "recover from the defendants, Brantley Bros., a late firm composed of Z. A Brantley and Jones Brantley," etc., is not void as being against the partnership only, but is against each of the designated members thereof.

2. JUDGMENT. Not valid as to codefendants not served with process.

A judgment against all of several codefendants, some of whom were not served with process and did not submit themselves to the jurisdiction of the court, is void as to the defendants not served with process, but under section 4944, Code 1906 (Hemingway's Code, section 3220), is valid against the defendants of whom the court had acquired jurisdiction.

3. SUBROGATION. Lender of money entitled to subrogation to lien of canceled mortgage, where money used in paying debt secured by mortgage.

In order that a lender of money may be entitled to be subrogated to the lien of a mortgage that has been canceled the money borrowed from him must have been used in paying the debt secured by the mortgage, and under an express or implied agreement that he shall be subrogated to the rights of the mortgagee.

4. HOMESTEAD. Exemption of homestead acquired by occupation after execution, but before sale, does not confer right to convey land not his homestead, free from lien.

The right of the head of a family to prevent the sale of land owned by him but not his homestead, under an execution issued on a judgment against him, by moving on and occupying the land as a homestead before the sale, does not confer on him the right to convey land not his homestead, free from the lien of a judgment then existing against him.

5. INJUNCTION. Allowance of attorney's fees for defending whole case where bill is dismissed and injunction dissolved not error.

When on final hearing a bill is dismissed and an injunction pendente lite granted the complainant is dissolved in a suit in equity, where the only relief sought by the complainant is an injunction, and the dissolution of the temporary injunction involves also the dismissal of the bill, the defendant is entitled to attorney's fees incurred in defending' the whole case.

ETHRIDGE, J., dissenting.

HON. T. P. GUYTON, Chancellor.

APPEAL from chancery court of Neshoba county, HON. T. P. GUYTON, Chancellor.

Suit by the Bank of Philadelphia and others against M. C. Posey, Sheriff, and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Note: The judgment in this case reversed on suggestion of error: See 95 So. 134, 130 Miss. .

Affirmed.

Green & Green and Z. A. Brantley, for appellant.

F. V. Brahan and G. G. Lyell, for appellee.

SMITH C. J. ETHRIDGE, J., dissenting.

OPINION

SMITH, C. J.

In 1907 a judgment was rendered by the circuit court of Neshoba county that the Milburn Wagon Company, a corporation, "do have of and recover from the defendants, the Brantley Bros., a firm composed of Z. A. Brantley, J. R. Brantley, and Jones Brantley," etc., and before it became barred by limitation an action at law was begun thereon against Z. A. Brantley and Jones Brantley, in which a judgment by default was rendered in February, 1915, that the Milburn Wagon Company, a corporation, "recover from the defendants, Brantley Bros., a late firm composed of Z. A. Brantley and Jones Brantley," etc. On May 17, 1920, an execution was issued on the second judgment and levied on certain land owned by J. R. Brantley, and on which the Bank of Philadelphia holds a deed of trust executed to it by J. R. Brantley to secure a debt due it by him. After the levy of the execution the Bank of Philadelphia and J. R. Brantley exhibited an original bill in the court below against the sheriff, Posey, and the Milburn Wagon Company, alleging, in substance:

That Z. A. Brantley was not served with process to appear and defend either of the actions in which the judgments were rendered; that the land was purchased by Jones Brantley from J. J. Hardage in February, 1918, who "after the conveyance of" the land to him, but on the same day that he purchased it, executed a deed of trust thereon to the Citizens' Bank of Philadelphia to secure an indebtedness to it; that on the 8th day of January, 1920, Jones Brantley conveyed the land to J. R. Brantley, who on the 20th day of December, 1920, executed a deed of trust thereon to the Bank of Philadelphia to secure an indebtedness due it by him; that both of these deeds of trust were given "to secure the payment of the purchase money on said lands purchased as aforesaid from J. J. Hardage and wife by the said Jones Brantley, and each and every renewal of the original trust deed at the time of the purchase of said land were renewals of the said trust deed given on the date of the purchase of said property, and that each and every one of the foregoing trust deeds or mortgages are duly recorded, as is shown by exhibits hereto attached, and the defendant the Milburn Wagon Company is now estopped from setting up any claim to said lands, and the complainants now and here plead the doctrine of estoppel as a bar to any claim against said lands in addition to any and all claim against said lands in addition to any and all other defense they have against the defendant in said suit; . . . that the said Jones Brantley did not put one cent of money in the lands involved in the litigation at the time of the execution of the said deed on the 15th day of February, 1918, by J. J. Hardage and wife to the said Jones Brantley on the 8th day of January, 1920, but charge the truth to be that the purchase money for said lands was advanced by the complainants, the Bank of Philadelphia and J. R. Brantley, as aforesaid."

How the deed of trust executed to the Bank of Philadelphia can be a renewal of the one executed to the Citizens' Bank of Philadelphia, a separate and distinct bank, is not set forth, nor does it appear from any allegation of the bill how, when, to whom, or under what circumstances the Bank of Philadelphia and J. R. Brantley paid the purchase money of the land. The bill prays for a temporary injunction, which was granted, restraining the defendants thereto from selling the land under the execution; that on final hearing the injunction be made perpetual, and "for such other, further, and general relief as they may be entitled to under the law and the facts." By amendment thereto the bill was made to charge that the land was purchased by Jones Brantley for a homestead, and was being used as such by him at the time he sold it to J. R. Brantley.

It does not appear either from the bill, answer, or the evidence whether J. R. Brantley joined in the plea to the declaration on which the first judgment hereinbefore referred to was rendered.

It appears from the evidence that Z. A. Brantley was not served with process in either of the actions in which the judgments hereinbefore were rendered; that the deed from Hardage to the land was delivered to Jones Brantley in the office of the Citizens' Bank of Philadelphia, and that at the same time and as a part of the same transaction he delivered to the bank the deed of trust executed by him to the bank to secure the money borrowed from it with which to pay for the land; that Jones Brantley has never lived on the land, but lived in the town of Philadelphia, several miles therefrom; that the deed of trust given to the Citizens' Bank of Philadelphia by Jones Brantley was paid off by J. R. Brantley and canceled of record, but when and under what circumstances it was paid off by him does not appear. It does not appear from the evidence what connection, if any, exists between the deed of trust executed by J. R. Brantley to the Bank of Philadelphia and the payment by him of the deed of trust executed by Jones Brantley to the Citizens' Bank of Philadelphia.

The cause was submitted on bill, answer, and proof, was taken under advisement by the chancellor, and a decree was rendered by him at the next term of the court, dissolving the temporary injunction, dismissing the bill of complaint, and allowing the defendants an attorney's fee of four hundred dollars, from which the complainants have appealed to this court.

At the term of the court succeeding the term at which the cause was submitted and before the decree was rendered the court overruled a motion made by the complainants that the case be remanded to rules and they be permitted to amend their bill of complaint as follows:

"The complainants pray that the Citizens' Bank of Philadelphia, Miss., be made a party defendant in this case and they charge that the complainant Bank of Philadelphia took up and paid off the trust deed held by the said Citizens' Bank against Jones Brantley covering the lands involved in this suit, and that the trust deed held by the Citizens' Bank was for purchase money advanced by the said bank in the payment of the land here involved, and that the Citizens' Bank therefore held a prior lien on said land, and that when the Bank of Philadelphia took up said trust deed held by the Citizens' Bank, at the request of Jones Brantley and J. R. Brantley, and by and with the consent of the said Citizens' Bank the complainant Bank of Philadelphia was subrogated to all rights or interest in said land that were held by the said Citizens' Bank.

"They would show to the court that the copy of the trust deed given by Jones Brantley to the Citizens' Bank to secure the purchase money of the lands here involved is made an exhibit to the original bill filed herein, as is also the trust deed given by J. R. Brantley to the Bank of Philadelphia, and the said trust...