Federal Land Bank of New Orleans v. Brumfield

• Decision Date: 27 March 1939
• Docket Number: 33632
• Citation: 185 Miss. 487,187 So. 522
• Court: Mississippi Supreme Court
• Parties: FEDERAL LAND BANK OF NEW ORLEANS et al. v. BRUMFIELD et al

187 So. 522

185 Miss. 487

FEDERAL LAND BANK OF NEW ORLEANS et al. v. BRUMFIELD et al

No. 33632

Supreme Court of Mississippi, Division B

March 27, 1939

APPEAL from the chancery court of Walthall county HON. R. W. CUTRER Chancellor.

Suit by W. D. Brumfield and others against the Federal Land Bank of New Orleans and others, for injunction against sale of land under deed of trust, and for accounting. From a decree granting the injunction, the named defendant appeals. Reversed and rendered.

Reversed and decree here for appellant.

Hall &amp Hall, of Columbia, and E. F. Steiner, T. H. Hedgepeth, and W L. Pack, all of New Orleans, La., for appellants.

The Chancellor erred in his findings as to the amount due on the indebtedness. The decree fixed the debt at a sum even less than the amount which the appellees admitted they owed and were willing to pay. It is the position of the appellants that the Chancellor's findings are all manifestly erroneous, and that the decree cannot be reconciled to the evidence on any basis.

Federal Land Bank v. Garner, 184 So. 469; Greenburg v. Sauls Bros., 91 Miss. 410, 45 So. 569; Stewart v. Graham, 93 Miss. 251, 46 So. 245.

The Chancellor erred in finding that appellees tendered to the appellant bank the amount due on the indebtedness.

We most earnestly submit that the record does not justify the finding that on October 1, 1937, the appellees owed the sum of only $ 757.00, and that on this date he offered to pay this amount to the bank in settlement of the loan. Mr. Brumfield testified that he offered to pay the bank the sum of $ 764.34; but we submit that there is no evidence to support his conclusion that this was the correct amount due.

The Chancellor was not warranted in deducting from the amount due on the debt the amount withdrawn from the loan for purchase of capital stock in the local farm loan association.

Griffith's Chancery Practice, sec. 565; Federal Farm Loan Act, 12 U.S.C. A., secs. 733, 742, 721; Knox National Farm Loan Assn. v. Phillips, 300 U.S. 194, 81 L.Ed. 599; Byrne v. Federal Land Bank, 237 N.W. 797; Federal Land Bank v. Warner, 23 P.2d 563; Sovereign Camp, W. O. W. v. Rhyne, 171 Miss. 687, 158 So. 472; Western Union Tel. Co. v. Showers, 112 Miss. 411, 73 So. 276; C. N. O. & T. P. R. R. Co. v. Rankin, 241 U.S. 319, 36 S.Ct. 555, 60 L.Ed. 1022.

The injunction against appellants was wrongfully and unlawfully sued out.

That the injunction was wrongfully and unlawfully issued and served upon appellants is beyond question. In the case of Federal Land Bank of New Orleans v. Lee et al., 165 So. 613, 174 Miss. 774, this court said: "Furthermore, we think the court should not grant an injunction, especially where no bond is given to protect the holder of the debt, without a hearing on the matter, if reasonably possible, before the injunction is granted."

Atlantic Life Ins. Co. v. Klotz, 181 So. 519.

This court in the case of Jones v. Spearman, 174 Miss. 781, 165 So. 294, decided almost two years before the case at bar was tried, condemned the practice of obtaining an injunction under the moratorium law without showing justification for it.

Jones v. Spearman, 174 Miss. 781, 165 So. 294; Atlantic Life Ins. Co. v. Klotz, 181 So. 519; Wilson Banking Co. Liquidating Corp. v. Colvard, 161 So. 123, 172 Miss. 804.

The final decree strips the appellant bank of its security and reduces its claim to an open account.

The final decree should have provided for dissolution of the injunction against appellants.

Mounger & Calhoun, of Tylertown, for appellees.

The Chancellor was eminently correct in his findings as to the amount due on the indebtedness.

The findings of the Chancellor that the appellee had tendered the amount due on the indebtedness was well founded in the evidence.

Not one word contrary to the Chancellor's finding relative to the tender is found in the record. In its position and contention in this regard the appellant must in effect urge this court to go completely beyond the evidence and outside of the record to hold the learned Chancellor in error. We do not consider it necessary to cite authority indicating that a chancellor may rely upon and accept as true the undisputed testimony in a case to come to a conclusion which is the sole evidence before him on a given proposition.

The Chancellor was warranted in deducting from the debt the amount of capital stock which the appellant required him to obtain before consummating the loan in question.

The assignment and argument by the appellant that "the injunction against appellant was wrongfully and unlawfully sued out" is at this time a vain question.

The final decree rendered in this cause does not strip the appellant bank of its security nor reduce its claim to open account.

The final decree should not have provided for a dissolution of the injunction against the appellant.

We respectfully urge that this case is essentially a case of accounting and the sole inquiry relates to the merits of the action with regard to the Chancellor's finding in fixing the amount of the indebtedness in the light of the testimony. We submit that the overwhelming and undisputed testimony in the case supports the Chancellor's finding relative thereto and the record conclusively showing that the appellee tendered the full sum thereof to the appellant and the appellant having refused the same the resultant action of the learned Chancellor was necessarily correct as being founded upon the first principles of equity. Though appellant's contention that the injunction was wrongfully issued, might be sound, he made no contention for damages relative thereto and the action of the lower court in this regard was consumed in the equity of the circumstances surrounding its final decree and we thus conclude that justice has been done and that this court will not disturb the decree of the Chancellor by reason of some conceived technical department which the appellant now pretends.

Argued orally by Bernard Callender and T. H. Hedgepeth, for appellant.

OPINION

McGehee, J.

An injunction was obtained by appellees in January, 1938 without notice to appellant or the giving of the bond required by law, for the purpose of preventing a sale of land which was then being advertised to take place more than twenty days thereafter under the terms of a valid deed of trust securing an indebtedness then in default. The bill of complaint asked not only that the sale be enjoined, but that the appellant be required to render an accounting as to the correct amount of the indebtedness due. Some reference is made in the bill to the financial depression, and it is alleged therein that the complainants are entitled to the benefits of the Moratorium Statute, Chapter 287 of the Laws of 1936, which provides for the issuance of an injunction without bond, under certain conditions, to stay the foreclosure of a mortgage, but the essential allegations in that behalf are not made. Section 3 of the act provides, among other things, that: "Precedent to the granting of an order enjoining said foreclosure in pais it must affirmatively appear in the petition or complaint seeking such injunction that the petitioner is unable under federal regulations to refinance his indebtedness through any agency or instrumentality of the United States government, or that the creditor or holder of the indebtedness secured by the instrument sought to be enjoined has refused to accept the terms of the refinancing offered or recommended by any agency or instrumentality of the United States, or that an application for refinancing through a federal agency or instrumentality has been filed and is pending." Also Federal Land Bank of New Orleans v. Garner, Miss., 183 Miss. 555, 184 So. 469. Appellees not only failed to make the foregoing allegation, but on the contrary alleged that they had, as a matter of fact, been able to make the necessary arrangements for obtaining...