Fields v. Mutual Ben. Life Ins. Co.
| Decision Date | 04 January 1938 |
| Docket Number | No. 4216.,4216. |
| Parties | FIELDS et ux. v. MUTUAL BEN. LIFE INS. CO. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.
Walter G. Sheppard, of Snow Hill, N. C., and J. Faison Thomson, of Goldsboro, N. C., for appellants.
Francis E. Winslow, of Rocky Mount, N. C. (Kemp D. Battle, of Rocky Mount, N. C., on the brief), for appellee.
This is an appeal by plaintiffs from an order dismissing the bill of complaint in so far as it asks affirmative relief against one of the defendants, the Mutual Benefit Life Insurance Company. The bill was filed to set aside the attempted conveyance of a tract of land under the powers of sale contained in certain deeds of trust, and to have the land declared the property of plaintiffs subject to the debts secured by the deeds of trust, with recovery of rents and profits, or, in the alternative, to recover the value of the land from the insurance company, if it should be held that the persons holding possession under deeds from that company were innocent purchasers. The only question which we need consider is whether an appeal lies from the order entered.
The bill alleges that the plaintiffs on March 1, 1924, executed a deed of trust on the land in question to Edward E. Rhodes, as trustee, to secure an indebtedness of $25,000 to the insurance company, subsequently executing deeds of trust on the same land to J. I. Morgan and John Hill Paylor as trustees to secure debts of $6,400 and $3,913.24, respectively, to Farmville Oil & Fertilizer Company and T. L. and W. J. Turnage Company; that, pursuant to a scheme to deprive plaintiffs of their property, Paylor as trustee conveyed the property on February 10, 1931, to the Farmers' Gin & Mill Company, an affiliate of the Farmers Oil & Fertilizer Company, without consideration and without advertisement or other compliance with the terms of the deed of trust, and that the gin and mill company held possession of the property for the year 1931, during which time its reasonable rental value was $5,000; that on January 16, 1932, Rhodes as trustee conveyed the property to the insurance company, but without giving the notices or otherwise conducting sale as required by the terms of the deed of trust appointing him; that the insurance company thereupon entered into possession of the property and remained in possession for the years 1932, 1933, and 1934, during which period its reasonable rental value was $24,500; and that in 1934 the insurance company conveyed a part of the property to Carl T. Hicks, president and a director of the oil and fertilizer company and also of the gin and mill company, and the remainder thereof to a Mrs. Walston, both of whom were alleged to have had knowledge of the defect in the title of the insurance company. It was also alleged that the land conveyed to Hicks was worth at the time $50,000 and that to Mrs. Walston $10,000.
The insurance company, the oil and fertilizer company, the gin and mill company, the three trustees under the various deeds of trust and the purchasers from the insurance company were all made parties defendant. The prayer was that the deeds from Paylor, trustee, to the gin and mill company, from Rhodes, trustee, to the insurance company, and from the insurance company to Hicks and Mrs. Walston be declared void and of no effect, and that plaintiffs recover as rents and profits for the period that possession had been withheld from them $5,000 from the gin and mill company and the oil and fertilizer company and $24,500 from the insurance company. As alternative relief, in the event that either Hicks or Mrs. Walston should be held to be an innocent purchaser, plaintiffs prayed recovery against the insurance company for the value of the lands as to which such holding should be made.
From the foregoing statement it is perfectly clear that the order dismissing the bill, in so far as it asks affirmative relief against the insurance company, is not a final or appealable order. The prayer for alternative relief against that company no doubt presented a separable controversy which justified the removal of the...
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