Blacketor v. Cartee

• Decision Date: 20 May 1935
• Docket Number: 31742
• Citation: 161 So. 696,172 Miss. 889
• Court: Mississippi Supreme Court
• Parties: BLACKETOR et al. v. CARTEE

161 So. 696

172 Miss. 889

BLACKETOR et al. v. CARTEE

No. 31742

Supreme Court of Mississippi

May 20, 1935

Division B

APPEAL from the chancery court of Smith county, HON. T. PRICE DALE Chancellor.

Bill by T. A. Cartee against Elizabeth S Blacketor, in which A. J. Davis intervened as a party defendant. From the decree, the defendants appeal. Reversed and remanded.

Reversed and remanded.

F. M. Morris, of Hattiesburg, for appellants.

Let it be admitted that the defendant, A. J. Davis, having sold the land to J. W. Kersh, and having executed to him a warranty deed, which deed was delivered but never placed on record, and later returned to Davis unrecorded. We frankly admit that this did not reconvey the title to Davis, but that the title to the land remained vested in J. W. Kersh.

McAllister v. Mitchenar, 68 Miss. 672, 9 So. 829; Connor v. Tippett et al., 57 Miss. 495; Partee, Admx., v. Matthews, 53 Miss. 142.

The assignment of the mortgage indebtedness by Davis to Cartee carried with it the title to the mortgage, and the right to foreclose the deed of trust for its collection.

Brown v. Yarbrough, 130 Miss. 715, 94 So. 887.

But when Davis paid to Cartee the full amount of his indebtedness, for which the mortgage had been collaterally assigned to secure the same, all interest therein of T. A. Cartee ceased, and he had no further right to deal with the mortgage in any respect whatsoever; and Cartee having procured the foreclosure by the trustee after he had been paid in full for all interest in the mortgage collaterally assigned to him, said foreclosure was a nullity and void, and the deed of trust from Kersh to Davis stood unaffected by the invalid acts of Cartee.

Section 2152, Code of 1930; 41 C. J. 811, par. 960; 11 C. J. 667, pars. 419 and 961; Lowery v. Haley, 12 Ala.App. 448, 68 So. 539; 2 Words & Phrases, first series, page 1252; 1 Words & Phrases, second series, page 757; 5 C. J. 958, par. 143.

Where the debt for which the collateral is given is paid, the right to hold the collateral ceases, and after that time the assignee has no interest in the collateral that he can transfer to another.

Wilbur v. Almy, 12 How. 180, 13 L.Ed. 944; Chicago R. R. Co. v. Provolt, 42 Colo. 103, 93 P. 1126, 16 L.R.A. (N.S.) 587; Collins v. Jennings, 42 Iowa 447; Shropshire v. Combs, 100 S.W. 252, 30 Ky. L. 1120; Hamlin v. European R. R. Co., 72 Maine, 83; Parks v. Hall, 2 Pick. 206; Lewy v. Gilliard, 76 Tex. 400, 13 S.W. 304; Palmer v. Chandler, 158 Miss. 604, 131 So. 104; Freeman v. Wilson, 51 Miss. 329.

It is now a well settled doctrine in courts of equity, that they will examine into the true character of a conveyance, which, on its face, imports an absolute title, and will give it effect, as contemplated by the parties, to be ascertained by their contemporaneous and subsequent conduct.

Anding v. Davis, 38 Miss. 594; Barkwell v. Swan, 69 Miss. 907, 13 So. 809; Mason v. Moody, 26 Miss. 184; Section 3351, Code of 1930.

It can, therefore, readily be seen that sections 526 and 527, Code of 1930, do not require this receipt to be exhibited, and, in fact, its exhibition to the answer and cross-bill amounts to mere surplusage. The action was not based upon this receipt, the relief prayed for in the cross-bill was not depending upon the receipt, but upon the effect of same, and the receipt was but an evidence of payment.

Clark v. Miller, 142 Miss. 123, 105 So. 502; Quarles v. Hucherson, 139 Miss. 356, 104 So. 148; Andrews Stevens Pleadings (2 Ed.), 256; 31 Cyc. 547; 16 Encyc. of Pleadings & Practice, 1082; Eastman Gardner Hardware Co. v. Hall, 137 Miss. 354, 102 So. 270.

Clearly the cross-bill alleges the full and complete payment of the debt to Cartee, which extinguished and cancelled all right which Cartee had in and to the deed of trust and notes, and automatically operated as an equitable reassignment of the notes and deed of trust.

Starke v. Fulton, 136 Miss. 637, 101 So. 857; Blum v. Planters Bank & Trust Co., 161 Miss. 226, 135 So. 353.

Homer Currie, of Raleigh, for appellee.

If appellants had any title at all to the land it is certainly and unquestionably a legal title, yet appellee denies that they have any legal title, under section 2152, Code of 1930.

Munn v. Potter, 111 Miss. 180, 71 So. 315.

The argument of appellants as to their equitable rights and title is untenable, and is such as would not concern the appellee and his rights, under the authorities as cited.

Sections 3343, 3344 and 3348, Code of 1930; Clearman v. Cotton, 66 Miss. 467, 6 So. 156; Howie v. Swaggard, 142 Miss. 409, 107 So. 556; Sections 299, 300 and 301 of Griffith's Mississippi Chancery Practice.

A demurrer admits only facts that are well pleaded, and does not admit conclusions, either of fact or of law, and the mere recital in a declaration of an alleged claim or defense of the defendant is not an averment of a fact, the existence of which is admitted by a demurrer.

Barns v. Jones, 103 So. 773, 139 Miss. 675; Section 288, Griffith's Chancery Practice.

Appellants maintain that the indebtedness owing by Davis to Cartee, for which the assignment was made to secure, was fully paid before the foreclosure of the deed of trust, and they plead payment. Payment is an affirmative defense and must be set up by answer, except in such an unusual case that it should happen to appear in the very allegations of the bill itself.

Section 301, Griffith's Chancery Practice; Smith v. Jassen, 105 Miss. 229, 62 So. 172.

This exhibit becomes and is a part of the answering cross-bill of the appellants, and they are bound thereby.

Section 374, Code of 1930; House v. Gumble, 78 Miss. 259, 29 So. 71; McNeill v. Lee, 79 Miss. 455, 30 So. 821.

Argued orally by F. M. Morris, for appellant.

OPINION

Ethridge, P. J.

T. A. Cartee, appellee, filed his bill in the chancery court of Smith county against Elizabeth S. Blacketor, a nonresident, for the purpose of confirming his title to certain lands described in the bill. It was alleged in the bill that the complainant and defendant claimed from a common source of title, to-wit, A. J. Davis, and that on the 27th day of October, 1928, said A. J. Davis conveyed said land to J. W. Kersh, taking a deed of trust for two thousand five hundred dollars thereon, with Homer Currie as trustee. The deed was filed for record on January 22, 1932, and the deed of trust on October 29, 1928, and the bill alleges that on March 5, 1929, A. J. Davis transferred and assigned to T. A. Cartee an interest in the deed of trust to the extent of eight hundred thirty-four dollars and eighty-three cents, which assignment was duly recorded; that the note secured by the deed of trust was not paid, and the trustee, Homer Currie, upon the request of Cartee, after a foreclosure, executed a trustee's deed to Cartee.

It was further alleged that on the 31st day of December, 1931, the said A. J. Davis executed and delivered to Elizabeth S. Blacketor a warranty deed attempting to convey said land. It was further alleged that A. J. Davis had no title at this time, and the bill prayed for the confirmation of the title conveyed to T. A. Cartee, and for the cancellation of the deed to Elizabeth S. Blacketor. There was exhibited to the bill, as finally amended, a notice of the trustee's sale, proof of publication of the notice, deed from Davis to Kersh, deed of trust from Kersh to Davis, and the assignment, to the extent of eight hundred thirty-four dollars and eighty-three cents, of the deed of trust to T. A. Cartee.

A. J. Davis appeared, without having been made a defendant, and sought to answer the bill, and on objection thereto made application to be admitted as a defendant, which was granted. Elizabeth S. Blacketor appeared and answered, which answer was made a cross-bill.

The answer and cross-bill denied that Cartee was in possession of the land involved, and asserted that the land was held by tenants of defendant and Davis; admitted that A. J. Davis sold said land to J. W. Kersh by warranty deed, and that Kersh executed a trust deed for two thousand five hundred dollars, to secure the purchase price. It further alleged that Kersh never recorded his deed, and, being unable to meet the payments, returned the warranty deed to A. J. Davis, and relinquished verbally all right, title, and interest in and to said property. However, the bill and answer alleged that A. J. Davis had assigned, to the extent of eight hundred thirty-four dollars and eighty-three cents, the deed of trust then duly of record to T. A. Cartee to secure an indebtedness due by Davis to Cartee, with an agreement that, when said eight hundred thirty-four dollars and eighty-three cents was paid, the said T. A. Cartee would reassign said deed of trust to A. J. Davis. It was further alleged that the debt of eight hundred thirty-four dollars and eighty-three cents due by Davis to Cartee had been fully paid, and that Cartee had failed and refused to return the deed of trust to Davis. It was further alleged that, after Kersh relinquished his right in said property and returned the deed executed to him, the appellant, A. J. Davis, acting in good faith with his assignee, Cartee, delivered to him the unrecorded deed made to Kersh, to be held by Cartee until the payment of the indebtedness due him by Davis. It was further alleged that A. J. Davis was indebted to Elizabeth S. Blacketor in the sum of six hundred dollars, and that he conveyed to her his interest in said land to secure this debt, but that it was understood and agreed between them that, upon the payment of said six hundred dollars, she would reconvey said land to him, and that the said A. J. Davis continued thereafter, and is now, in possession thereof by his tenant. It was further alleged that the...