Federal Land Bank of New Orleans v. Leflore County

• Decision Date: 09 April 1934
• Docket Number: 30881
• Citation: 153 So. 882,170 Miss. 1
• Court: Mississippi Supreme Court
• Parties: FEDERAL LAND BANK OF NEW ORLEANS et al. v. LEFLORE COUNTY et al

153 So. 882

170 Miss. 1

FEDERAL LAND BANK OF NEW ORLEANS et al. v. LEFLORE COUNTY et al

No. 30881

Supreme Court of Mississippi

April 9, 1934

Division A

1 EVIDENCE.

Parol evidence showing fraudulent acts of president of board of county supervisors in his dealings with county and in fraudulently securing county warrants purporting to be in payment for lumber sold to county by him was admissible to show minutes as drawn were not true minutes of board.

2 COUNTIES.

Orders which were procured to be entered on minutes of county board of supervisors by fraud, held void.

3 COUNTIES.

County was not liable for mortgaged timber bought by reason of negligence, if any, of other members of board in failing to discover and prevent unlawful, unauthorized, and fraudulent acts of president of board.

4. COUNTIES.

Unlawful, unauthorized, and fraudulent acts of president of board of county supervisors did not create any liability on part of county to pay for lumber from mortgaged land owned by president of board.

5. MORTGAGES.

Where trust deed contained covenant against commission of waste and authorized foreclosure on breach of agreements, title, on breach of covenant against waste, was vested in trustee.

6. MORTGAGES.

Beneficiary and trustee could sue for conversion of timber, since trust deed confers title to property embraced in it and, after condition broken, grantee may maintain any action in respect to such property that an owner could maintain.

7. MORTGAGES.

Where beneficiaries of trust deed, recorded in county wherein land was located, did not consent to removal of logs from county, or sale thereof, buyer had constructive notice of trust deed and was liable for value of logs bought.

HON. R. E. JACKSON, Chancellor.

APPEAL from chancery court of Leflore county, HON. R. E. JACKSON, Chancellor.

Suit by the Federal Land Bank of New Orleans and another against Leflore county, W. P. Keesler, Louis Mathis, and others. From a decree dismissing the bill as to defendants named, plaintiffs appeal. Affirmed in part and reversed in part, and rendered.

Affirmed in part and reversed in part.

Alfred Stoner, of Greenwood, for appellants.

It is our contention that in those instances where counties receive benefits on account of the grossly negligent or fraudulent acts of its officials, then they must pay due compensation.

Raney v. Hinds County, 78 Miss. 308, 28 So. 875.

It is not necessary that the board of supervisors pass an order prior to the commission of the wrong. It is sufficient if the county receive the benefits of the wrong done whether there is an express order directing the doing of the wrong or not.

Copiah County v. Lusk, 77 Miss. 136, 24 So. 972; Herod v. Carroll County, 162 Miss. 78, 138 So. 800; Graham v. Covington Co., 110 Miss. 645, 70 So. 825; Morris v. Covington Co., 118 Miss. 875, 80 So. 337; Covington Co. v. Watts, 120 Miss. 428, 82 So. 309; Tishomingo Co. v. McConville, 139 Miss. 589, 104 So. 452.

A county, independently of the statute, is bound to make restitution, if it obtains the money or property of others, without authority, and it may be required to repay sums of money received from one of its officers, which were illegally collected by him in the mistaken belief that he was empowered or required by law to make such collection.

7 R. C. L., Counties, sec. 26, p. 951; Auerbach v. Salt Lake County, 90 Am. St. Rep. 685; Peter Schussler v. Hennepin County Commissioners, 39 L. R. A. 75.

Under the decisions of Mississippi and other authorities, Leflore county has no right to retain the benefits of the wrongful acts of its officers without compensating the owner of the property taken.

Sec. 24 of the Const.; Code 1930, sec. 270.

Our court has also held that in those instances wherein a county receives the benefit of a wrong it is liable to suit and to all of the pecuniary pains and penalties pronounced against individuals.

Leflore County v. Allen, 80 Miss. 298.

We submit that the testimony proved that all of the timber purchased by Leflore county from the Wade Lumber Company came from the Keesler place which formed the security securing the deed of trust in favor of The Federal Land Bank.

The Federal Land Bank made out a strong prima facie case when it proved that all of the lumber bought from Keesler operating in the name of Wade Lumber Company came from the Keesler place, which fact remains undisputed, and when it proved further that Leflore county paid certain prices for the lumber, which fact also remains undisputed, and when it proved by the minutes of the board and by the warrants that the county received and paid for the lumber, which fact is only attempted to be disproved by surmises and suspicions.

Secs. 211 and 225, Code of 1930; Arthur v. Adam, 49 Miss. 404; Smith v. Tallahatchie County, 124 Miss. 36, 86 So. 707; Board v. Parks, 132 Miss. 752, 96 So. 466; Dickerson v. Thomas, 67 Miss. 777, 7 So. 503; Gross v. Jones, 89 Miss. 44, 42 So. 802; Hebron Bank v. Gambrell, 116 Miss. 343, 77 So. 148; Board of Miss. Levee Commissioners v. Wiborn, 74 Miss. 396, 20 So. 861.

The case was as thoroughly and definitely proved as the circumstances would permit.

Yazoo & Miss. V. R. R. Co. v. Levy & Sons, 141 Miss. 199, 106 So. 525.

Leflore county was charged with knowledge of the deed of trust which was recorded in Carroll county.

Code 1930, sec. 2142; Cole-McIntyre-Norfleet Co. v. Dubard, 135 Miss. 20, 99 So. 474; Alliance Trust Co. v. Nettleton, 174 Miss. 584, 21 So. 396.

Purchaser from tort-feasor, although innocent, takes title subject to rights of true owner and is liable to suit.

Rusum v. Hodges, 9 L. R. A. 817; Board of Miss. Levee Commissioners v. Wiborn, 20 So. 861; Planters Bank v. Lumis Cotton Gin Co., 41 A. L. R. 592.

One who removes mortgaged property is liable in damages.

Mathews v. Selsby Bros. 37 A. L. R. 1116.

The mortgagee may sue for the value of property taken, and this is true even though the value of the remaining property be sufficient to settle the debt.

2 Jones on Mortgages, sec. 695 and 695A; 38 Cyc. 2056.

Paul D. Montjoy, Jr., and W. H. Montjoy, both of Greenwood, for appellee, W. P. Keesler.

The allegations of bill of complaint and proof are insufficient.

Sec. 166, Griffith's Chancery Practice.

Relief cannot be granted under the general prayer alone.

Rutland et al. v. McIntosh et al., 83 So. 635.

Even conceding that the bill of complaint does charge a cause of action against the appellee does the evidence, or the lack of evidence, is wholly inadequate to charge this appellee with conversion.

26 R. C. L. 1098, par. 3.

Agency was not such as to render appellee liable.

Dixie Fertilizer Co. v. Teasley, 69 So. 988; 50 L. R. A. 649.

The mere fact that the property has been placed in the custody of the agent, and that he has returned it to the principal is not sufficient to hold him for conversion.

One who, knowing another has no title to goods, receives them into his custody, is not guilty of conversion by merely permitting the one from whom he received them to retake them.

Loring v. Mulcahy, 3 Allen 576; Burditt v. Hunt, 25 Me. 419, 43 Am. Dec. 289; 50 L. R. A. 653.

All of the authorities holding an agent or servant of his principal or master liable to a third person for conversion are cases where the agent actually took an active part in the conversion.

Freeman et al. v. R. E. Cunningham, 57 Miss. 67.

It is our conclusion from section 2128 of the Code of 1930 and from the Freeman v. Cunningham case supra, that this appellee had a perfect right to operate the saw mill, and that until condition was broken and foreclosure that even the principal, General S. R. Keesler, was not guilty of conversion.

26 R. C. L. 1111, sec. 21.

Means Johnston, of Greenwood, for other appellees.

Counties are political subdivisions of the state, created for the purpose of discharging public duties, and it is settled by numerous decisions of this court that no suit can be maintained against a county for the negligence of its officers unless such liability is created by some statute, expressly or by necessary implication.

Pidgeon Thomas Iron Co. v. Leflore County, 135 Miss. 155, 99 So. 677; Brabham v. Supervisors, 54 Miss. 363, 28 Am. Rep. 352; Redditt v. Wall, 55 So. 45, 34 L. R. A. (N. S.) 152; City of Grenada v. Grenada County, 115 Miss. 831, 76 So. 682; Stephens v. Beaver Dam Drainage District, 123 Miss. 884, 86 So. 641.

In the absence of a valid statute imposing liability therefor, a public corporation created in invitum for the purpose of discharging a public function is not liable for the negligence of its officers, agents, or employees.

Jefferson County v. Grafton, 74 Miss. 435, 21 So. 247, 36 L. R. A. 798, 60 Am. St. Rep. 516; Nugent et al. v. Board of Levee Commissioners, 58 Miss. 197; Harrison County v. Marione, 110 Miss. 592, 70 So. 702; Ayers v. Board of Trustees, 98 So. 847; Gift v. Love, 141 So. 563; Eastman Oil Mills v. State ex rel. Roberson, 130 Miss. 63, 93 So. 484; Meridian Waterworks Co. v. Meridian, 85 Miss. 515, 37 So. 927; Edwards Hotel & City St. R. R. Co. v. Jackson, 96 Miss. 547, 51 So. 802; Brabham v. Board of Supervisors of Hinds County, 54 Miss. 363.

Counties are political divisions of the state, created for convenience. They are not corporations with the right to sue and be sued as an incident to their being, but are quasi corporations, invested by statutes with certain powers, and subject to certain liabilities, and can neither sue nor be sued, except as authorized by statute.

Redditt v. Wall et al., 55 So. 45, 34 L. R. A. (N. S.) 152; Sutton v. Board of Police, 41 Miss. 236; Nugent v. Board of Levee Commissioners, 58 Miss. 197; Lowe v. Board of Levee Commissioners, 19 So....