Bell v. Clark, Hood & Co.

• Decision Date: 18 December 1893
• Citation: 14 So. 318,71 Miss. 603
• Parties: E. C. BELL v. CLARK, HOOD & CO
• Court: Mississippi Supreme Court

14 So. 318

71 Miss. 603

E. C. BELL v. CLARK, HOOD & CO

Supreme Court of Mississippi

December 18, 1893

FROM the chancery court of Pontotoc county, HON. BAXTER McFARLAND Chancellor.

In 1885, appellees, Clark, Hood & Co., assignees of a judgment against W. A., J. G. and J. M. Dozier, caused execution thereon to be levied upon certain lands as the property of J M. Dozier. J. M. and J. G. Dozier were also indebted to complainant. Clark, Hood & Co., in other sums, for which the latter brought suit and recovered judgments. The Doziers filed their bill to enjoin the sale of the lands levied upon under the judgment, and, J. M. Dozier having meantime conveyed the lands in controversy to his wife, Clark, Hood &amp Co. filed a bill against the judgment defendants and Louisa Dozier, the wife of said J. M. Dozier, to set aside the conveyance, alleging that it was made for the purpose of hindering, delaying and defrauding creditors. These several matters of controversy culminated in a written agreement of compromised pursuant to which J. M. and J. G. Dozier and Louisa Dozier promised to pay Clark, Hood & Co. $ 3,500 in full satisfaction of all their demands, and, for the security of this, they executed their joint promissory notes, payable in installments, and also executed a deed of trust on the lands in controversy, which had been conveyed to Mrs. Dozier. It was further agreed that judgments and decrees should be rendered in favor of Clark, Hood & Co. against the Doziers for the full amounts sued for, but these were to be considered as satisfied by the execution of the notes and trust-deeds provided for by the compromise agreement. It was further stipulated that none of the priorities equitably belonging to the debts in favor of Clark, Hood & Co. should in case of future litigation, be waived or relinquished. The date of the compromise settlement, and of the notes and trust-deed executed in pursuance thereof, was August, 1886.

Pending the suits above mentioned, and a few months before the said adjustment, J. M. and Louisa Dozier executed to appellant, E C. Bell, a deed of trust on the land in controversy, to secure an indebtedness due to Bell. Subsequently, before payment of the indebtedness to Clark, Hood & Co., and before the bar of the statute of limitations had attached, J. M. Dozier died. In December, 1892, the trustee in the said deed of trust executed by J. M. and Louisa Dozier in favor of Bell, advertised the land to be sold, whereupon Clark, Hood & Co. and Louisa Dozier filed this bill to enjoin the sale. The bill sets out the facts as above narrated, and, after asserting complainants' priority, prays that the sale under the deed of trust in favor of Bell be enjoined, and the trust-deed canceled. It also prays for general relief.

The defendant, Bell, demurred to the bill, on the ground, among others, that it did not show that complainants were entitled to any relief against defendant, and because it appeared that the note and trust-deed to Clark, Hood & Co. were barred by the statute of limitations. From a decree overruling the demurrer, defendant appeals.

Decree reversed, bill dismissed and remanded.

J. D. Fontaine, for appellant.

The fact that the debt, as to appellee, Louisa Dozier, was barred, did not invalidate the trust-deed jointly executed by her and her husband. The deed of trust was given to secure their joint note, and, so long as any part of the debt was not barred, the lien existed. If it be conceded that Bell's trust-deed is junior to the liens of Clark, Hood & Co., its foreclosure could not prejudice them. It would merely pass an equity of redemption, which is an estate in the land. 3 Waite on Ac. & Def., 143; Buck v. Payne, 52 Miss. 271. Such a sale would not even cast a cloud on a prior lien or superior title. The demurrer should have been sustained.

J. A. Blair, for appellees.

The indebtedness to complainants, Clark, Hood & Co., was not barred when the bill was filed. It was stipulated in the compromise and settlement, that all liens existing by virtue of their judgments and creditor's bill should remain in force. Nothing has ever been paid on the indebtedness, and no liens have been discharged or relinquished. There has merely been a change in the form of the indebtedness, and the statute of seven years, applicable to judgments and decrees, applies. A court of equity will look through the form to the substance, and keep alive the original security, if justice requires it. Howell v. Bush, 54 Miss. 437; Schumpert v. Dillard, 55 I b., 348.

All that the bill really claims, aside from the statute of limitations,...