Bankston v. Hill

• Decision Date: 28 January 1924
• Docket Number: 23699
• Citation: 98 So. 689,134 Miss. 288
• Court: Mississippi Supreme Court
• Parties: BANKSTON v. HILL

98 So. 689

134 Miss. 288

BANKSTON v. HILL

No. 23699

Supreme Court of Mississippi

January 28, 1924

Division B

APPEAL from chancery court of Coahoma county, Second District, HON G. F. WILLIAMS, Chancellor.

Suit by Mrs. I. P. Bankston against A. Hill. From a decree for defendant, plaintiff appeals. Reversed and remanded.

Judgment reversed and cause remanded.

Maynard FitzGerald & Venable, for appellant.

The only question involved is: "Where property is sold and title is retained until the purchase price is paid, does the retaking of the property discharge the debt?" This question was answered in the affirmative by the court below, and this position is sustained by some decisions.

But as we understand it, the doctrine in Mississippi is that a title retention note is looked upon in legal effect as mere security for the purchase price; in short, a chattel mortgage; and all the results of so considering it follow. It is, therefore, not the law in Mississippi that the retaking of the property is the rescission of the sale. Mr. Williston, in his work on contracts, section 737, aligns himself with the rule in Mississippi.

The following Mississippi cases are in point: Duke v. Shackleford, 56 Miss. 552; Dederick v. Wolfe, 68 Miss. 500; Foundry Co. v. Pascagoula Ice Co. , 72 Miss. 615; Rodgers v. Whitehead et al., 127 Miss. 21.

The ruling of the chancellor in the court below was directly in the face of the decisions of this court. The doctrine of the Mississippi supreme court is sound as to legal theory, effectuates the intent of the parties at the time of the conditional sale, and really carries out the intent of the parties according to the terms of their contract in holding that the retaking of the property is not a rescission of the contract of sale but an enforcement of it.

Flowers & Brown and Brewer & Brewer, for appellees.

This automobile was taken away without any authority of law and over the protest, and against the wishes of the appellees. Instead of pursuing the legal remedy afforded her, appellant, through her husband and agent, took the law in her own hands and went to the home of appellees and took the automobile away.

It is contended that there is a conflict between the Mississippi decisions and the decisions of the other courts. In our opinion, counsel for appellant misconstrue the meaning of the word "retaking." We have not been able to find any case from any court wherein a seller was allowed to take from the purchaser the property sold, over the objection and protest of the purchaser, and without any authority or process of law, and then recover over on the notes evidencing the balance of the purchase price.

The Mississippi cases cited in appellant's brief are not in point. They do not touch the issue in the case at bar. The facts in our case do not fit in with the facts in either of the Mississippi cases. They are altogether different. An altogether different principle of law is involved.

On the direct questions involved in this appeal there are many cases in point. Sanders v. Newton, 140 Ala. 335; Peasley v. Noble, 17 Idaho 686, 134 A. S. R., 270; Turk v. Carnhan, 29 Ind.App. 125, 81 A. S. R. 85; Madison River Live Stock Company v. Osler, 39 Mont. 244, 133 A. S. R. 558; Perkins v. Grobben, 116 Mich. 172, 72 A. S. R. 512; McRea v. Mansfield, 48 Ark. 160; Bailey v. Hervey, 135 Mass. 172; McBryan v. Universal Elevator Company, 130 Mich. 11, 97 A. S. R. 453; Minneapolis Harvester Works v. Halley, 27 Minn. 495; Manson v. Dayton, 135 F. 258.

Another question precludes appellant from any standing or relief in a court of equity. The ancient maxim, "He who comes into equity must come with clean hands," has direct application here. Any wilful act in regard to the matter in litigation which would be condemned and pronounced wrongful by honest and fair-minded men will be sufficient to make the hands of the applicant unclean.

Appellant's act in going to the home of appellees, on a Sunday afternoon, and taking therefrom, without their permission or consent, and over their objection and protest, the automobile in question was illegal, unwarranted, unjust, unfair and inequitable, and such as would be condemned and pronounced wrongful by honest and fair-minded men.

OPINION

COOK, J.

A. Hill and wife, appellees, purchased from Mr. Will Counts an automobile, and to evidence a part of the purchase price executed notes aggregating two thousand nine hundred and thirty-five dollars. The payment of these notes was secured by a deed of trust on forty acres of land belonging to the appellees, and also by a reservation in the notes of title to the automobile. These notes and the deed of trust were transferred and assigned to the appellant. Afterwards the appellant exhibited her bill of complaint in the chancery court of the second district of Coahoma county, seeking a personal decree against the defendants for the balance due on these notes, and also seeking to foreclose the lien of the deed of trust, and also to enforce the lien created by the reservation of title in the notes. The defendants answered the bill and made their answer a cross-bill, seeking the cancellation of the deed of trust. Upon the final hearing the chancellor entered a decree dismissing the bill of complaint, and granting the relief prayed for in the cross-bill, and from this decree this appeal was prosecuted.

The facts disclosed by this record are substantially as follows: The appellees having failed to pay the notes, about the 1st of January, 1922, the appellant, accompanied by her husband, W. L. Bankston, went to the home of appellees and took the automobile and carried it to her home in Tunica, Miss. According to the testimony of W. L. Bankston he, acting as the agent of his wife, entered into an arrangement with appellees whereby he was to take the automobile, have it repaired, and sell it for the best price obtainable, and apply the proceeds of the sale on the indebtedness. The appellees denied that any such arrangement or agreement was entered into, and they testified that the automobile was taken from them without their consent and over their protest.

The record shows by the testimony of both parties that there was no agreement that the automobile was to be taken in satisfaction of the debt, and both W. L. Bankston and A. Hill, one of the appellees, testified that a few days after the automobile was taken by the appellant a conference about the matter was held in the city of Clarksdale, and that Bankston there endeavored to obtain a bill of sale to the automobile, but Hill refused to execute any such conveyance,...