Edgell v. Ham

• Decision Date: 04 April 1899
• Docket Number: 696.
• Citation: 93 F. 759
• Parties: EDGELL v. HAM et al.
• Court: U.S. Court of Appeals — Fifth Circuit

93 F. 759

EDGELL v. HAM et al.

No. 696.

United States Court of Appeals, Fifth Circuit.

April 4, 1899

This is an action of ejectment to recover 3,600 acres of land situated in Coahoma county, Miss. George S. Edgell brought the suit against J. Sam Ham, the tenant in possession. His landlords, W. H. Carroll, trustee of the Union &amp Planters' Bank, J. C. Neely, H. M. Neely, and S. H Brooks, partners under the firm name of Brooks, Neely & Co. were made parties defendant on their motion. They pleaded not guilty. The plaintiff read in evidence a deed of trust executed by J. T. Jefferson to W. G. Wheeler, trustee, of date March 10, 1886, embracing the lands sued for. This deed of trust secured three notes of Jefferson, payable to F. W Dunton, for $2,705 each, dated 'Burke's Landing, Miss., March 10th, 1886,' payable, respectively, November 1, 1886, November 15, 1886, and December 1, 1886. They bore interest from maturity until paid at the rate of 'ten per cent. per annum.' The deed of trust recited that Jefferson was 'of the county of Coahoma and state of Mississippi,' and that Wheeler and Dunton were of New York. It contained a power of sale. It provided for the substitution of another trustee, and that the 'contract embodied in this conveyance, and the notes secured hereby, shall in all other respects be construed according to the laws of the state of Mississippi, where the same is made. ' It was acknowledged before a commission for Mississippi and Memphis, Tenn. It was filed for record in the proper office in Coahoma county, Miss., May 13, 1886. The plaintiff also read in evidence Dunton's letter to Wheeler, dated September 7, 1887, declaring the notes due, default having been made in the payment, and directing sale; Wheeler's resignation as trustee, dated September 7, and the appointment of B. J. Martin as trustee. This appointment was recorded in 'Book DD, page 458, of the Record of Land in Coahoma County. ' The plaintiff then read in evidence the record in the case of Jefferson v. Martin. This was a suit by J. T. Jefferson against B. J. Martin and F. W. Dunton in the chancery court of Coahoma county, Miss. The purpose of the bill was to enjoin the sale under the deed of trust, and to have it declared void for usury, under the statutes of either Tennessee or New York. By this bill Jefferson alleged that the 'negotiations were commenced, the contract completed, and the notes executed in pursuance thereof, in the state of Tennessee, and were made payable in the state of New York. ' Jefferson's deposition, taken in the Mississippi suit, was also read in evidence. It tended to show that the loan, and contract to secure it, were made in Tennessee. The decree of Hon. W. R. Trigg, chancellor, decided that the contract should be governed by the laws of Tennessee, reduced the interest to 6 per cent. per annum, and ascertained a balance to be due of $4,909.06, and dissolved the injunction, so as to allow a foreclosure as to the sum so found due. On appeal to the supreme court of Mississippi, this decree was by that court affirmed on March 11, 1895. The bond given by Jefferson to obtain the injunction had on it, as sureties, H. M. Neely, S. H. Brooks, and J. C. Neely. The plaintiff then read in evidence the following conveyance:

'B. J. Martin to Geo. S. Edgell. Deed.

'By virtue of, and pursuant to, the terms and provisions of a deed of trust of date March 10th, 1886, executed by Joshua T. Jefferson to W. G. Wheeler, trustee, to secure certain indebtedness therein mentioned,-- said trust deed being of record in the clerk's office of Coahoma county, Miss., in Deed Book W, pages 381 et seq., of the land records of said county, at Friarpoint,-- and pursuant to a decree of the chancery court of said county of Coahoma, in the First district, in the case of J. T. Jefferson vs. B. J. Martin, Trustee et al., entered on the . . . day of December, 1893, dissolving the injunction theretofore issued, in said cause, and holding the said trust deed, and the notes thereby secured, a valid security for the sum of $4,909.06, and authorizing the foreclosure of said trust deed for said amount, which said decree was affirmed by the supreme court of Mississippi, the undersigned, as substituted trustee, after advertising the time, place, and terms of sale as required by said trust deed, this day offered for sale to the Highest bidder for cash the following lands embraced in said trust deed, to wit: Lots two, three, four, five, six, and seven in section twenty-four; all of section twenty-five; lots one, two, three, four, and five in section twenty-six; all of fractional section thirty-four; lots one, two, three, four, five, six, seven, eight, nine, ten, eleven, and twelve in section thirty-five; all of section thirty-six; all in township twenty-eight, range six west; lots three, four, five, six, seven, eight, and nine in section thirty; and all except the east half of the northeast quarter of section thirty-one in township twenty-eight, range five west; and lots one, two, three, four, five, six, seven, eight, nine, ten, and eleven in section three, including all accretions by the river, in township twenty-seven, range six west, containing thirty-six hundred acres, more of less; all of said lands lying in Coahoma county, Mississippi,-- and sold the same to Geo. S. Edgell, at the price of five thousand dollars. The undersigned first offered said lands in subdivisions of not exceeding one hundred and sixty acres, and then offered said lands as an entirety, and the said sum of five thousand dollars bid for said lands as an entirety by the said Geo. S. Edgell, exceeding the sum bid for the said lands, when offered in subdivision as aforesaid, the same was struck off to him at the said sum of five thousand dollars, which was the last, highest, and best bid therefor: Now, therefore, in consideration of the premises, and the said sum of five thousand dollars, the undersigned, who was duly substituted as trustee in the place of said W. G. Wheeler, resigned, hereby conveys and specially warrants all of the above-described lands to the said Geo. S. Edgell. Witness his signature this 20th day of April, 1895.

'B. J. Martin, Trustee.'

This deed was duly and legally acknowledged and recorded.

The defendants read in evidence: A deed of trust from J. T. Jefferson to E. L. McGowan, trustee, conveying said lands, of date February 18, 1891. Toof, McGowan & Co. are the beneficiaries of this deed. It contained power of sale. Deed of E. L. McGowan, Jr., trustee, to W. H. Carroll, J. C. Neely, S. H. Brooks, and H. M. Neely, conveying said lands, of date March 25, 1896. Deed of trust from J. T. Jefferson to D. A. Scott, conveying said lands, dated February 26, 1891. This deed contained power of sale, and said Brooks, Neely & Co. are the beneficiaries. Deed of D. A. Scott, trustee, to Brooks, Neely & Co., conveying to them said lands, of date January 2, 1893.

The defendants examined J. T. Jefferson as a witness and he testified as follows: 'Shortly before the execution of the notes and trust deeds of March 10, 1886,-- the notes payable to F. W. Dunton, and the trust deed to W. G. Wheeler as trustee,-- I called on F. W. Dunton, in New York City, and arranged with him to get the money called for by said notes. This was down in the city of New York., and the terms were all agreed on there. When I got back to Memphis, Martin, Dunton's agent residing there, drew up the papers; and I signed and executed them, and delivered them to Martin. I was a resident of Memphis, Tenn., at the time of the transaction, and have been for many years. I still reside there. From 1891 to 1896 I spent the most of my time in Arkansas. Was engaged in planting there, in connection with J. C. Neely, of Memphis. Every Saturday evening I would go up to Memphis on the boat, and return on Monday evening. I do not know why the notes to Dunton were dated 'Burke's Landing, Mississippi.' They were executed and delivered to B. J. Martin, Dunton's agent in Memphis, Tenn., who, I suppose, sent them to Dunton. I owned a plantation, at that time in Coahoma county, Miss., called the 'Burke Place,' or the 'Burke's Landing Plantation.' Dunton loaned me the money to run the place, but I don't know that it was all used that way. Might have used some of it in my business in Memphis. I didn't spend a great deal of my time on my plantation. If I have spent more of my time there, I might have been better off. I did not read over the trust deed before I signed it, and didn't notice that I was described as being 'of Coahoma county, Miss.,' or that it stated that the contract was made in Mississippi. Prior to that time I had signed and acknowledged two deeds of trust, each securing $25,000, that contained the same provisions, but I didn't read over any of them. They were prepared and presented to me for execution, and I executed them without examining them. ' The plaintiff, in rebuttal, examined B. J. Martin, whose evidence tended to show that the agreement between Dunton and Jefferson for the loan was not concluded in New York, but was finally agreed on after the witness had examined the sufficiency of the security offered. 'Jefferson was then planting in Coahoma county, Mississippi, on the Burke Place, and the money was loaned him to aid him in carrying on his planting operations there. ' The plaintiff also offered in evidence two letters written by J. T. Jefferson,--one to F. W. Dunton, dated January 12, 1889, and one to B. J. Martin, dated January 18th, in both of which he referred to the debt evidenced by the notes and mortgage. In the former he said: '* * * If your claim is not paid in full by November or December, 1889, I will ask no further favor. I will pay the interest, up to December 1st, that is due on the two notes. ' In...