Connecticut General Life Ins. Co. v. Planters Trust & Savings Bank
| Citation | 181 So. 724,182 Miss. 463 |
| Decision Date | 06 June 1938 |
| Docket Number | 33203 |
| Parties | CONNECTICUT GENERAL LIFE INS. CO. et al. v. PLANTERS TRUST & SAVINGS BANK et al |
| Court | Mississippi Supreme Court |
Suggestion Of Error Overruled June 30, 1938.
APPEAL from the chancery court of Washington county, HON. J. L WILLIAMS, Chancellor.
Proceeding by the Planters Bank & Trust Company, a creditor of Lawrence Blum, deceased, to subject land owned by Blum at his death to the payment of claims probated against his estate, wherein the Planters Trust & Savings Bank became successor in interest to the Planters Bank & Trust Company opposed by Mrs Jennie S. Blum and others. From an adverse judgment, the Connecticut General Life Insurance Company and others appeal. Reversed and rendered.
Petition dismissed.
Wells, Wells & Lipscomb, of Jackson, and S. B. Thomas, of Greenville, for appellants.
All of the right, title and interest, legal or equitable, held by Lillie A. Blum and Abraham Morgan Blum, sole heirs and devisees of Lawrence Blum, deceased, passed to Mrs. Jennie S. Blum by the warranty deed executed by them to her. All of the right, title and interest, legal or equitable, held by Herman Blum and his wife and Minette Sedonia Moyse and her husband, and Nathan Goldstein, passed by their quit claim deed to Mrs. Jennie S. Blum.
All of the right, title and interest, legal or equitable, held by Mrs. Jennie S. Blum, and especially her equitable first lien for $ 65,000.00 and interest and the equitable second lien for $ 135,000.00 and interest, passed by the warranty in her deed of trust to Carlyle, the original trustee, to Barcroft, the substituted trustee, and to the Connecticut General Life Insurance Company by the trustee's deed.
Sections 2110, 2122, 2194, 2125 and 2126, Code of 1930; Fink v. Henderson, 74 Miss. 8, 19 So. 892; Robertson v. Sullivan, 102 Miss. 581, 59 So. 846.
It is well settled in Mississippi that where the grantor conveys property by warranty deed, any rights acquired by him subsequent to such warranty inures to the benefit of the grantee and warrantee.
Fletcher v. Wilson, 1 S. & M. 376; Taylor v. Eckford, 11 S. & M. (19 Miss.) 1; Harris v. Byers, 73 So. 614, 112 Miss. 651; Garner v. Garner, 78 So. 623, 117 Miss. 694; Bush v. Person, 59 U.S. 82, 15 L.Ed. 273; Miss. Sawmill Co. v. Douglas, 65 So. 885, 107 Miss. 678; Fitzgerald v. Allen, 89 So. 146, 126 Miss. 878.
Under the facts in evidence and under the law, the Planters Trust & Savings Bank, owner of the probated claim, was guilty of such laches, and its conduct was such as to estop it from seeking from a court of equity an order to sell the Mounds Plantation to pay its probated claim.
Griffith's Chancery Practice, sec. 33.
Litigants who do not pursue their remedies in a court of equity in good time are barred by the equitable doctrine of laches.
Ayres v. Mitchell, 3 S. & M. 683; Johnson v. Jones, 13 S. & M. 580; Wynn v. Kendall, 85 So. 85, 122 Miss. 809; Comans v. Tapley, 101 Miss. 203, 57 So. 567; Aetna Ins. Co. v. Robertson, 94 So. 7; State v. Woodruff, 150 So. 760.
Estoppel may arise from misleading silence or passive conduct joined with the duty to speak.
Kelso v. Robinson, 172 Miss. 829, 161 So. 135.
There was no merger of legal and equitable titles in Mrs. Jennie S. Blum and in the Connecticut General Life Insurance Company.
It is the universal law that there is no merger unless there is an intention on the part of the holder that such merger shall take place, and in the absence of evidence, intention of the holder of both legal and equitable titles, as to whether same will merge, will be presumed to accord with his interest. On the contrary, when it is not to the interest of the holder of both legal and equitable titles, it will be presumed that they did not merge.
Cade v. Toler, 155 Miss. 606, 124 So. 793; Brown v. Doe, 10 S. & M. 268.
A merger will not take place if it be apparent that the junior mortgagee in purchasing did not so intend, or that a merger is against his manifest interest.
Great Southern Land Co. v. Valley Securities Co., 162 Miss. 120, 137 So. 310; Fortham v. Deters, 99 Am. St. Rep. 161; Shattuck v. Belknap Savings Bank, 63 Kan. 443, 65 P. 643; Hanlon v. Doherty, 109 Ind. 37, 9 N.E. 782; Coburn v. Stephens, 13 Ind. 683, 36 N.E. 132, 45 Am. St. Rep. 218; Moffet v. Farwell, 222 Ill. 543, 78 N.E. 925; Scott v. Hill, 50 S.W.2d 110; Commonwealth Building & Loan Assn. v. Martin, 49 S.W.2d 1046; North Texas Building & Loan Assn. v. Overton, 86 S.W.2d 738; Pearson v. Mulloney, 194 N.E. 458; McCraney v. Morris, 170 S.E. 276; Mueller v. Morrell, 112 N.J.Eq. 200, 163 A. 901; Anderson v. Starr, 294 P. 581.
The deed of trust in question was foreclosed in pais by the substituted trustee. Such sale was legal and valid.
William Payne and Ernest Kellner, both of Greenville, for appellees.
On the second appeal in this case this court decided, and whether correctly or not it is the law of this case both in the trial court and on this appeal, that notwithstanding their quit claim deed of September 8, 1927, to Jennie S. Blum, the appellees, Herman Blum and Minette Sedonia Moyse, held a two-thirds interest in the equitable lien of $ 135,000.00 against Mounds Plantation as against Jennie S. Blum, the appellant and the creditors of the estate of Lawrence Blum, deceased.
It is the law in this state and universally that when an issue between parties has been finally decided, whether correctly or not, it is conclusive in the same or any Other proceeding between the same parties.
Griffith's Chancery Practice, sec. 698; Green v. McDonald, 21 Miss. 452; N. Y. Life Ins. Co. v. McIntosh, 46 So. 401.
In support of their contention that by their quit claim deed Herman Blum and Minette Sedonia Moyse conveyed to Jennie S. Blum their two-thirds interest in the equitable lien of $ 135,000 against Mounds Plantation, counsel cite Secs. 2110, 2122, 2124, 2125 and 2126 of the Code of 1930, and also the cases of Fink v. Henderson, 74 Miss. 8, and Robertson v. Sullivan, 102 Miss. 581.
We concede, of course, that any interest in land itself, under the code sections cited, shall and does pass by a deed of the owner of such interest in the land, but we deny that an equitable lien can or does pass by a deed of the owner of such equitable lien attempting to convey the land. It is settled in our state that neither the trustee in a deed of trust nor the mortgagee in a mortgage on land have any right, title or interest in the land until after condition broken.
Section 2128, Code of 1930; Adams v. Mortgage Co., 82 Miss. 263; Wright v. Wright, 160 Miss. 235; 1 Pomeroy's Equity Jurisprudence (4th ed.), sec. 165; Elson v. Barrier, 56 Miss. 394.
An examination of the deed from Herman Blum and Minette Sedonia Moyse attempting to convey Mounds Plantation to Jennie S. Blum does not disclose any intention whatsoever to assign or pass to Jennie S. Blum their interest in the equitable lien of $ 135,000 against Mounds Plantation.
41 C. J. 676, notes 14 and 15.
In this case the appellant must prevail, if at all, on the presumption against a merger to support its contention that Jennie S. Blum did not intend that the titles should merge, and, in order to come within the rule, in this case, it is necessary to assume that the deed to Jennie S. Blum was executed in satisfaction of her interest in the equitable liens against Mounds Plantation.
We say that, in attempting to acquire the legal title to Mounds Plantation from the heirs of Lawrence Blum, deceased, the record made by Jennie S. Blum and the appellant in this case is conclusive that she did not have in mind any question of an equitable lien against Mounds Plantation but was endeavoring to acquire the full legal title thereto free from any encumbrance in herself or anyone else.
It is held that where the mortgagee, after acquiring the equity, conveys or leases the entire property, that evidences an intention to merge the titles.
It is true that the question, whether or not a merger takes place in equity, depends upon the intention of the parties, and a variety of other circumstances: 15 Am. & Eng. Ency. of Law, 1st ed., 314. But "a merger will be prevented by equity only, however, for the purpose of promoting substantial justice; it will not prevent a merger, where such prevention would result in carrying a fraud or other unconscientious wrong in effect:" 15 Am. & Eng. Ency. of Law, 1st ed. 315.
Frothman v. Deters, 206 Ill. 159, 69 N.E. 97, 99 A. S. R. 145; Loomer v. Wheelwright, 3 Sandf. Ch. 135; Porn. Eq. Jur. (4th ed.), sec. 794, page 1625.
In controversy between junior lienor and a, senior mortgagee who has taken the mortgaged property under an absolute conveyance in satisfaction of his mortgage debt, the burden of proof is on the latter to show that such debt was equal to the value of the property taken, and that the equity of redemption being worthless no harm resulted to the junior lien-holder.
We say that the appellant wholly failed to meet the burden of proof sufficient to sustain a non-merger in Jennie S. Blum of the legal and equitable titles to Mounds Plantation, and that, therefore, if Jennie S. Blum acquired the legal title to Mounds Plantation by the conveyance from the heirs of Lawrence Blum, deceased, the same is now held by the appellant charged with the liens in favor of the appellees.
In neither the answer nor the cross-petition of the appellant is it alleged or was any attempt made to prove that the facts alleged in the plea of laches either induced or influenced any action or non-action on the part of the appellant or that the appellant was in any manner, shape or form prejudiced by the facts alleged as constituting laches. In the...
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