Gilliam v. McLemore

• Decision Date: 12 October 1925
• Docket Number: 24965
• Citation: 141 Miss. 253,106 So. 99
• Court: Mississippi Supreme Court
• Parties: GILLIAM et al. v. MCLEMORE et al. [*]

106 So. 99

141 Miss. 253

GILLIAM et al. v. MCLEMORE et al. ^[*]

No. 24965

Supreme Court of Mississippi

October 12, 1925

Division A

Suggestion Of Error Overruled December 7, 1925.

APPEAL from circuit court of Bolivar county, second district, HON. W. A. ALCORN, JR., Judge.

Suit by J. B. Gilliam and others against G. B. McLemore and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

Affirmed. Overruled.

Watson & Jayne and Clark, Roberts & Hallam, for appellants.

As to the case against G. B. McLemore and C. R. Smith, makers of the notes sued on, the peremptory instruction requested by appellants should have been given. These makers of the notes sued on offered no valid defense either in their pleas or in their evidence. Sections 2169 and 2170, Hemingway's Code and the cases thereunder annotated, settle this question.

As to Leslie Poe, this appellee along with appellees, J. L. Smith and H. Earl Smith, agreed to pay the notes sued on and the taxes on the plantation purchased by them, when they purchased Asia plantation from the other appellees, G. B McLemore and C. R. Smith, accepted the deed therefor and enterd into the possession thereof. It is clear from the deed that this particular appellee, Leslie Poe, along with his co-grantees, assumed and agreed to pay the indebtedness sued on by specific reference thereto; and that this assumption was one of the conditions of the deed through which they took title to Asia plantation.

Appellants did not know of this transaction until long after its consummation; they had no part therein and did not give consent thereto. However, if they had been notified of the transaction or given their consent thereto, such would not have affected their rights. There were no restrictions in the deed from appellants to the other defendants, G. B. McLemore and C. R. Smith, with regard to the releasal of the property. There is no provision of law in this state restricting the right of alienation of lands subject to mortgage. Therefore, the grantors in this particular deed had full right to convey to the grantees on any terms which appealed to them.

Appellants contend that Leslie Poe was liable on the notes sued on, under his assumption thereof. Dodge v. Cutrer, 56 So. 455, 100 Miss. 657, 27 Cyc. 1344, 39 Cyc. 1655; Barnes v. Jones, 71 So. 573. Under the foregoing authorities and the provisions of sections 2169 and 2170, Hemingway's Code, supra, appellants' cause was made made against this particular appellee, Leslie Poe, and the peremptory instruction requested by appellants should have been given.

As to appellees, J. L. Smith and H. Earl Smith, the trial court should have given them the peremptory instruction requested to find for the appellants as against all of the appellees. The evidence as to the alleged releasal was insufficient to establish a contract of release. If the evidence was sufficient to establish a contract of release, the same was made on Sunday and, therefore, void. Section 1102, Hemingway's Code, and cases cited.

The alleged contract was without consideration and, therefore, void. Appellees attempted to show consideration for the alleged releasal contract by delivery of possession of Asia plantation before the end of the year 1923, so that appellants could make ready for the operation of the year 1924. This was no consideration because the condition of the mortgage had already been broken by the failure of the appellees to pay principal and interest for two years and appellees had the right of entry without having to purchase it. Section 2283, Hemingway's Code (section 2779, Code of 1906); Smith v. Forbes, 89 Miss. 141, 42 So. 382; Elder v. Jones, 106 Miss. 489, 64 So. 212.

General Statement of Law. Appellants contend that their right of recovery in this cause as to any or all of appellees is sustained by the application of sections 2169 and 2170, Hemingway's Code. These sections control in the instant case. See, also, Baber v. Hanie, 80 S.E. 57 (N. C.); Gilmore v. Shearer, 197 N.W. 631; Bull v. Smith et al., 191 N.W. 624; Wood v. Stevenson 217 P. 953; 20 Am. & Eng. Ency. of Law (2 Ed.), pages 989-990.

Shands, Elmore & Causey, for appellees.

The plaintiffs sold to C. R. Smith and G. B. McLemoro a certain tract of land in Bolivar county, Mississippi, known as the Asia plantation. Shortly after the purchase, they sold the Asia plantation to J. L. Smith, H. E. Smith and Leslie Poe for some cash and the additional consideration of the absolute assumption by the grantees of the indebtedness of the grantors to plaintiffs and the solemn agreement of the said grantees to pay said indebtedness to the plaintiffs. Shortly after this transaction and for a good and valid consideration, Leslie Poe sold his interest to J. L. Smith and H. Earl Smith, a part of the consideration being the assumption of the indebtedness of C. R. Smith and G. B. McLemore to plaintiffs, which indebtedness Leslie Poe had theretofore assumed, agreed to pay and made his own indebtedness.

Plaintiffs predicate their rights for recovery against Leslie Poe upon the promise recited in the deed from C. R. Smith and G. B. McLemore to him and upon his promise to pay the debts of Smith and McLemore to plaintiffs. Plaintiffs predicate their rights of recovery against J. L. Smith and H. E. Smith upon this same promise and upon the promise for a valuable consideration made to Leslie Poe that they would pay the indebtedness, so in the suit we find plaintiffs seeking a recovery against five pensons, on three distinct promises: The first promise being common to C. R. Smith and G. B. McLemore; the second being common to the other three defendants; the third promise being common to J. L. Smith and H. Earl Smith. All three promises were made at different times, for a different consideration, for different amounts, to different persons and evidenced by different instruments.

Plaintiffs contend that as a result of these transactions all five of the defendants became either joint or joint and several plaintiffs. Our contention, is that they never at any time bore any such relation to the plaintiff, but that after the deed was made by C. R. Smith and G. B. McLemore to Leslie Poe, J. L. Smith and H. Earl Smith, the last three became the principal debtors and C. R. Smith and G. B. McLemore became sureties; that after the deed from Poe to J. L. Smith and H. Earl Smith, J. L. Smith and H. Earl Smith became the principal debtors and Leslie Poe became secondarily liable and C. R. Smith and G. B. McLemore became tertiarily liable.

That Leslie Poe, J. L. Smith and H. Earl Smith became liable to pay to the plaintiffs the amount of the indebtedness evidenced by the notes of C. R. Smith and G. B. McLemore is now, and has been for many years, settled law in Mississippi. Bonds v. Jones, 111 Miss. 337; Dodge v. Cutrer, 100 Miss. 647; Lee v. Newman, 55 Miss. 365; Sweatman v. Parker, 49 Miss. 19.

From a reading of these cases it will be seen that a liability arises against the grantee to pay this debt, not for the consideration which was the bases of the promise of the grantor, but for an independent consideration, which is evidenced not by the original note but is evidenced by the instrument in which the promise of the grantees is recited--that is, in the deed--and there is a liability upon the grantees in the deed regardless of the validity of the first note. This seems to be almost universally settled. 2 Devlin on Real Estates in Deeds (3 Ed.), sec. 1056, states the rule very tersely and recites many authorities to sustain it. See, also, Calvo v. Davies, 29 Am. Rep 130, the leading case on the subject; Braun v. Crew, 192 P. 531; Nelson v. Brown, 41 S.W. 960. The only criticism of this doctrine is in Connecticut Mutual Life Ins. Co. v. Mayer, 8 Mo.App. 18. Cases from different courts which follow Calvo v. Davies are; Ward v. Deoca (Cal.), 52 P. 130; Stuyvesant v. Mort. Co. (Colo.), 43 P. 144; Colchestu Bank v. Brown (Conn.), 52 A. 316; Brosseau v. Lowrey (Ill.), 70 N.E. 901; Woeley v. Hineman (Ind.), 33 N.E. 260; Santee v. Keefe (Iowa), 102 N.W. 803; Munsell v. Beals (Kans.), 46 P. 984; Cumberland Nat. Bank v. St. Clair (Me.), 44 A. 123; Franklin Bank v. Cochran (Mass.), 66 N.E. 200; Warner v. Williams (Md.), 49 A. 559; Alt v. Bouholzer, 36 Minn. 57; Winona v. Wilkie (Mich.), 1 N.W. 1049; Pratt v. Conway (Mo.), 49 S.W. 1028; Flieschmann. v. Doctener, 2 Abb. N. C. 373; Merriam v. Miles (Neb.), 74 N.W. 861; N. Y. L. Ins. Co. v. Casey (N. Y.), 79 N.E. 916; Poe v. Diron (Ohio), 54 N.E. 86; Y. M. C. A. v. Portland (Ore.), 55 P. 439; Blood v. Crow (Pa.), 35 A. 871; Iowa Co. v. Schnose (S. D.), 103 N.W. 22; McKay v. Ward (Utah), 57 P. 1024; Moore v. Triplett (Va.), 32 S.E. 50; Stites v. Thompson (Wis.), 73 N.W. 744; U. M. Life Ins. Co. v. Hanford (U. S.), L.Ed. 118. Having now established the status of the parties, we may safely undertake a solution of the questions involved, the first of which is to determine whether or not the peremptory instruction in favor of C. R. Smith and G. B. McLemore and Leslie Poe was properly given by the court. Plaintiffs knew that J. L. Smith and H. Earl Smith had become the principal debtors and C. R. Smith and G. B. McLemore sureties. Notwithstanding this, on January 10, 1923, without conferring with C. R. Smith and G. B. McLemore, they entered into an agreement with J. L. Smith and Calhoun Wilson, president of the Yazoo Delta Mortgage Co., which was a binding obligation for an extension of time for the payment of part of this indebtedness thus assumed. In this particular it was made for a valid and valuable consideration; to-wit, the forbearance of the Yazoo Delta Mortgage Co. of their rights to foreclose the personal property owned by and necessary to J. L. Smith to enable him to cultivate the Asia...