Farris v. Edmondson

• Court: Mississippi Supreme Court
• Writing for the Court: Ethridge, P. J.
• Citation: Farris v. Edmondson, 187 Miss. 214, 192 So. 825 (Miss. 1940)
• Decision Date: 08 January 1940
• Docket Number: 33943
• Parties: FARRIS v. EDMONDSON et al

192 So. 825

187 Miss. 214

FARRIS v. EDMONDSON et al

No. 33943

Supreme Court of Mississippi, Division B

January 8, 1940

APPEAL from the chancery court of Tishomingo county HON. JAS. A FINLEY, Chancellor.

Suit by A. W. Farris, administrator of the estate of L. M. Luttrell deceased, against W. T. Edmondson and B. A. Edmondson, his wife, to reform a trustee's deed executed pursuant to a sale under a trust deed given by defendants, wherein defendants filed a cross-bill seeking to cancel the trust deed note, the trust deed, and the trustee's deed, and for judgment over the amount of payments in excess of the principal of the note. Before the trial of the case B. A Edmondson died, and her two daughters were made defendants as being heirs of her one-half of the estate with W. T Edmondson. From the decree, plaintiff appeals and defendants cross-appeal. Affirmed.

Affirmed.

Clark & Clark, of Iuka, for appellant.

The lower court held that W. T. Edmonson could not testify so far as his claim is concerned, but could testify in behalf of the minor children. The proof shows that there was only one minor child. Now the claim of W. T. Edmondson and his two children were identical claims and I take it from the contention of counsel for appellee and the ruling of the court that if more than one person has a claim against an estate which is a joint claim that they cannot testify to establish their claim against the estate, but they can testify for each other; if this is true that would defeat the very intent of the statute. If they cannot testify for themselves, how can they jointly testify for each other. We therefore say that W. T. Edmonson could not testify for himself but he could not testify for others on a joint claim, unless he would waive his claim against the estate and Section 1529, Code 1930, so provides.

Evidence of the habit or custom of a party to loan money at usurious rates of interest is not admissible, unless it relates to, or is connected with, the transaction in issue.

66 C. J. 307.

As to the position as held by the court that it was necessary to probate the claim against the estate, we say that under the law if this claim was not probated within the time prescribed by law that it was barred.

There is no dispute as to publication to creditors being made and if this was a probatable claim that it is now barred.

24 C. J. 329-330; Harris et al. v. Hutchinson, Admr., etc., 65 Miss. 9, 3 So. 34.

According to the pleadings and the proof in this case at the time of the execution of the deed of trust which was foreclosed, and bearing date of January 26th, 1932, which was foreclosed and under which the appellant claimed title to the land that Edmondson did not owe Luttrell one cent; that appellant had paid him all he owed him by applying usurious interest and had applied the same to the principal which liquidated the debt that this note and trust deed were given in renewal, and if this is true according to the pleadings and the proof then the appellant had a claim against the estate in the amount of the cancellation of the amount of the last trust deed of the sum of something over $ 600.00; this was before the death of L. M. Luttrell and therefore his standing idly by and not probating this claim within the time it is barred by the statute of limitations, this is true even though there was no settlement until the foreclosure of the deed of trust because it was a claim against the estate, and law says that it is such claim that should be presented and registered which was not done.

It is true that the cause of action does not accrue until there is a settlement, but the settlement was made according to the pleadings and the proof January 26th, 1932, and at that time the statute began to run, and this suit not having been brought within the three years is barred by the three year statute of limitations.

W. C. Sweat, of Corinth, for appellees.

When a contract becomes tainted with usury, as in the case at bar, then all the payments made by the debtor to the lender are credited by the law to the principal, and all interest is forfeited.

Hardin v. Grenada Bank, 183 Miss. 689, 180 So. 805; Jones v. Brewer, 146 Miss. 142, 110 So. 115; Commercial Bank v. Auz, 74 Miss. 609, 21 So. 754; Armor v. Bank of Loudon, 86 Miss. 658, 39 So. 17.

The amounts paid by debtor on a usurious contract will be applied as a payment on the principal debt even though the payments would ordinarily have been barred by the statute of limitations.

Hardin v. Grenada Bank, 183 Miss. 689, 180 So. 805; Jones v. Brewer, 146 Miss. 142, 110 So. 115; Union National Bank v. Frazier, 63 Miss. 231; Beck v. Tucker, 147 Miss. 401, 113 So. 209; Feld v. Coleman, 72 Miss. 545, 17 So.378.

It was unnecessary to probate against the estate the payments made on this usurious note.

Sec. 549, Code of 1930; Cohn v. Carter, 92 Miss. 627, 46 So. 60; Schouler on Wills, Sec. 1842; 23 C. J. 1172, Sec. 390.

The statements by the deceased, Luttrell, that he always charged 10% interest were competent as declarations against his interest.

McClusky Bros. v. Hood Milling Co., 119 Miss. 92, 80 So. 492; Jackson v. Johnson, 126 Miss. 26, 88 So. 410; Saffold v. Horn, 72 Miss. 470, 18 So. 433; Baldridge v. Stribling, 101 Miss. 666, 57 So. 658; Kyle v. Peoples Bank & Trust Co., 187 So. 534.

The testimony of Edmondson was competent insofar as his two children were concerned, but the court did not consider Edmondson's testimony in deciding the case.

Saffold v. Horn, 72 Miss. 470, 18 So. 433.

On the cross-appeal cross-complainant was entitled to recover $ 102.70 with interest thereon at 6% from December 28, 1936.

OPINION

Ethridge, P. J.

The appellant, Farris, Administrator of the estate of L. M Luttrell, deceased, filed this suit in the chancery court to reform a trustee's deed, executed pursuant to a sale under a trust deed given by W. T. Edmondson and his wife, B. A. Edmondson. It appears that in 1922 Edmondson and wife purchased sixty acres of land from D. E. Rast and wife, the deed being made to both Edmondson and his wife jointly, but the sixty acres of land embraced in the deed of trust was an incorrect description of the...