Davis v. Crawford

• Decision Date: 11 May 1936
• Docket Number: 31835
• Citation: Davis v. Crawford, 175 Miss. 493, 168 So. 261 (Miss. 1936)
• Court: Mississippi Supreme Court
• Parties: DAVIS et al. v. CRAWFORD et al

168 So. 261

175 Miss. 493

DAVIS et al. v. CRAWFORD et al

No. 31835

Supreme Court of Mississippi

May 11, 1936

Division A

ON SUGGESTION OF ERROR. (Division A.)

1 HOMESTEAD.

Provision of trust deed on homestead executed by husband and wife that it was to secure any further amounts that might be advanced them held to refer to both mortgagors, and hence note on which husband was principal was not secured by deed, since wife's consent was necessary to enlargement of debt thereunder.

2 EQUITY.

Maxim "he who seeks equity must do equity" held inapplicable in suit for cancellation of trust deed pro tanto on exempt homestead, where complainants offered to pay balance due on debt, after application of credit to which they claimed they were entitled.

3 WITNESSES.

In suit by heirs of mortgagors against mortgagee bank to cancel trust deed, one of heirs who testified that he carried written order to bank at mortgagor's request held not incompetent, and testimony was not inadmissible as relating to transaction with a decedent, since decedent's estate was not party to suit and transaction was between decedent and bank rather than between decedent and heir.

4. EVIDENCE.

In suit by heirs of mortgagor against mortgagee bank to cancel trust deed, testimony as to contents of written order from mortgagor, alleged to have been delivered to mortgagee, held not inadmissible as not constituting best evidence, where bank cashier denied delivery, since testimony could have been made competent by introducing cashier.

HON. BEN STEVENS, Chancellor.

APPEAL from the chancery court of Lawrence county HON. BEN STEVENS, Chancellor.

Suit by Mrs. Edna Davis and another against L. E. Crawford, receiver of the Bank of Monticello, and others, wherein named defendant filed a cross-bill. From an adverse decree, the plaintiffs appeal. Decree affirmed.

On suggestion of error. Prior opinion withdrawn, and judgment below reversed and remanded.

Reversed and remanded.

T. B. Davis, of Columbia, for appellants.

The note secured by the deed of trust was Mr. Brewer's individual indebtedness (it is admitted by the answer that Mrs. Brewer's interest extended no further than her homestead right) and we contend that neither the bank nor the receiver could set his deposits off against a note on which he was jointly liable with others to the exclusion of his individual note and indebtedness and we understand the law to be that the right of the bank to apply the deposit of its customers to an indebtedness due from the depositor results from the right of the law of set off. Section 537 of the Mississippi Code of 1930, provides that where a mutual indebtedness exists between plaintiff and defendant, the defendant may plead and set off against the demand of the plaintiff any debt which he may have against the plaintiff.

3 R. C. L. 591, sec. 219; Liquidation of Insolvent Banks, by Amis, page 25, par. 26.

Mr. Brewer had the right to direct upon what note the deposits should be credited.

Love, Supt. of Banks, v. Lewis, 106 So. 358; Hardware Co. v. Brumfield, 132 So. 93; General Motors Acceptance Corp. v. Trull, 148 So. 390.

Claims between the parties must be mutual.

Hoover Commercial Co. v. Humphrey, 107 Miss. 810, 66 So. 214; Canal Commercial Savings Bank v. Brewer, 108 So. 424, 143 Miss. 146; Henry v. Hoover, 6 S. & M. 418; 3 R. C. L. 219; Shewalter v. Ford, 34 Miss. 417.

In the case of Jones v. Howard et al., 53 Miss. 707, it is held that a demand against one person cannot be set off against him and his partner.

Paine v. Lewis, 8 So. 207; 3 R. C. L., page 588, sec. 217, and page 647, par. 276.

It seems very clear that where the depositor directs that his deposit be credited to a particular note that such is binding, especially where the bank agrees to do so.

Sayre v. Weis, 10 So. 546; 3 R. C. L., par. 157, and page 592, par. 219; Shapleigh Hardware Co. v. Brumfield, 159 Miss. 175, 132 So. 93; 5 Cyc., page 551, footnote 56; Jones, Admr. v. Bank, 71 Miss. 1023; Home v. Nugent, 74 Miss. 102, 20 So. 159.

It is our contention that our allegations in the bill to the effect that during his lifetime, J. M. Brewer went to the bank while it was a going concern and directed that his deposits be placed to the credit of his secured note and wherein the cashier agreed to do so were not denied by the answer so as to require these appellants to make proof of same.

Section 380, Code of 1930; Jones Land Co. v. Fox, 120 Miss. 798, 83 So. 241; Hilton v. Mills, 120 Miss. 388; Hopper v. Overstreet, 79 Miss. 241, 30 So. 637.

Here is a case in which Mr. and Mrs. Brewer executed a deed of trust on their homestead, primarily to secure their joint note. Later Mr. Brewer individually, and so far as the record shows without the knowledge and consent of his wife, signed a note with Mr. and Mrs. Roper. Now the question is, can the husband induce the wife to execute a deed of trust on the home for a certain amount and then without her knowledge or consent increase this amount. If this were true then the husband could procure the wife to sign with him a deed of trust on the home for any small amount and then without her consent or knowledge, increase this amount to whatever sum he and the holder of the deed of trust might agree upon and she thereby be deprived of her home without her consent.

The husband alone cannot ordinarily enlarge or extend the terms of a mortgage on the homestead signed by both himself and wife, or interrupt the running of the statute of limitations against it, or renew it, or revive it, or change its legal effect in any way, but the consent of the wife is just as essential to the validity of such alterations or renewals as it is in the first instance to the execution of the instrument.

13 R. C. L. 645, sec. 105.

The record shows that at the time of the execution of this deed of trust Mr. and Mrs. Brewer were living upon the property described therein and that it constituted the homestead and in order to place a valid encumbrance it was necessary that she consent thereto. Contemporaneous consent of husband and wife, if living together, is essential to an encumbrance of the exempt homestead.

Duncan v. Moore, 67 Miss. 136, 7 So. 221.

The record shows that the money obtained on the Roper note was for the benefit of the Ropers.

Cummings v. Busby, 62 Miss. 195; 95 A. S. R. 916.

Since Mrs. Brewer did not consent to an encumbrance upon her home by the action on the part of her husband in signing the note with Mr. and Mrs. Roper, surely the bank could not hold this property as security for the Roper note.

13 R. C. L. 644, par. 104.

E. B. & H. J. Patterson, of Monticello, and R. L. Jones, of Brookhaven, for appellees.

The statute relative to persons testifying against the estate of a deceased person is section 1529, Code of 1930, and has been before the court many times. We desire to call the court's attention to only two cases.

Jackson v. Smith, 68 Miss. 53; Whitehead v. Kirk, 104 Miss. 776.

If the bank could defend the suit of J. M. Brewer by off setting the joint and several note of Brewer and Roper, then the right of set off existed and the bank had full authority to credit the Brewer deposit on the Brewer and Roper note.

Moodie v. Willis, 41 Miss. 347; Citizens' Bank of Greenville v. Kretschmar, 91 Miss. 608; Eyrich v. Capital State Bank, 67 Miss. 60.

A person propounding a claim against property of this character must establish the claim, and the receiver is not in a position to waive any rights or defenses.

Griffith's Chancery Practice, page 358.

There are two reasons the opinion of this court hereto-fore rendered is correct: 1. Because the deed of trust was a valid instrument providing for future advances, and was security for the advances afterwards made to J. M. Brewer. 2. The appellants by their bill sought affirmative relief in that they asked for the cancellation of a valid contract. In doing so they occupied no higher position than J. M. Brewer, himself, would have occupied, and are estopped to secure the cancellation of the valid instrument. They seek equity, but do not offer to do equity. Herron v. Land, 119 So. 823; Bacot v. Varnado, 91 Miss. 825, 47 So. 113.

There is no contention in this case that Mrs. Brewer did not sign the deed of trust. In fact, it is admitted that she signed it, and the deed of trust is conceded to be valid. The only requirement in the execution of a conveyance or encumbrance or contract regarding homestead property under the statutes of Mississippi is that the instrument must be executed jointly by the husband and wife.

Smith v. Scherch, 60 Miss 491

It is evident that the appellants stand in the shoes of J. M. Brewer. They could have no greater rights than J. M. Brewer would have if living.

Nixon v. Carco, 28 Miss. 414.

Some courts have gone so far as to hold that a mortgagor seeking to cancel a mortgage is bound to pay everything that he owes the mortgagee.

19 R. C. L. 507, sec. 303; Chamberlain v. Thompson, 10 Conn. 243, 26 Am. Dec. 390; Lee v. Stone, 23 Am. Dec. 589; Strickland v. Webb, 120 So. 168; Williams v. Williams, 148 So. 358.

ON SUGGESTION OF ERROR.

OPINION

McGowen, J.

Heretofore this case was affirmed. See 163 So. 543. Upon consideration of the suggestion of error filed herein by the appellants, we have decided to sustain it, set aside the former judgment, withdraw the former opinion, and now file our opinion anew therein.

Mrs Edna Davis and E. B. Brewer, son and daughter and sole surviving heirs of their father, J. M. Brewer, deceased, filed their petition in the chancery court of Lawrence county against L. E. Crawford, receiver of the Bank of Monticello, and others, praying for the cancellation of a deed of trust pro tanto on an...