Gobbert v. Wallace

• Decision Date: 04 February 1889
• Citation: Gobbert v. Wallace, 66 Miss. 618, 5 So. 394 (Miss. 1889)
• Court: Mississippi Supreme Court
• Parties: J. T. GOBBERT ET AL. v. SALLIE G. WALLACE

5 So. 394

66 Miss. 618

J. T. GOBBERT ET AL. v. SALLIE G. WALLACE

Supreme Court of Mississippi

February 4, 1889

FROM the chancery court of Tare county, HON. J. G. HALL Chancellor.

The facts are sufficiently stated in the opinion of the court.

Decree reversed and cause remanded.

Oglesby & Taylor, for appellants.

Shands & Johnson, for appellee.

OPINION

COOPER, J.

The decree of the chancellor involves the finding by him of these facts: That, in 1884 W. D. Ruffin was largely indebted to J M. Wallace, and on the 16th day of February of that year executed a deed of trust upon his plantation, the personal property thereon and the crops to be grown by him that year on said place or on any other lands he should cultivate. This deed was executed to secure the existing debt, for which two notes were then executed, one for eight hundred and thirty-five dollars, and one for nine thousand two hundred and thirty-four dollars and seven cents, and also to secure such other sums as might be advanced by Wallace during that year. At the end of the year 1884, the notes remained wholly unpaid, and there was a balance due on the open account of some two thousand dollars.

On the 7th day of March, 1885, Ruffin executed another deed of trust on the same land and personalty and also on his crops to be grown that year to secure the said notes and an open account. In January, 1886, Wallace failed in business and assigned the notes thus secured to one J. P. Wallace, and the open account to the firm of Porter & McRae. The lands mortgaged have been sold under a prior mortgage to other parties. J. P. Wallace, the assignee of the notes, caused the deed to be executed as to the personal property, by the sale of which a credit of about two thousand five hundred dollars was realized and applied to the notes. He then assigned the notes to Mrs. Wallace, to whom also Porter & McRae have assigned the open account. In the years 1884 and 1885 Ruffin, the mortgagor, without the consent of J. M. Wallace, the mortgagee, sold to the several other defendants portions of the crops raised by him in those years and covered by the mortgages, and they severally converted the crops, so that they can no longer be subjected to the mortgages. Other facts are found that are unimportant in the view we have taken of the rights of the parties.

Mrs. Wallace, the assignee of the assignees of the debts secured by the deeds, exhibited her bill in the chancery court of Tare county against Ruffin and the persons to whom he had sold the mortgaged crops, asking a decree against the mortgagor for the debt, and decrees against the other defendants for the value of the property converted by them respectively. She has secured such decrees, and from them the defendants other than Ruffin appeal.

Counsel for appellants have filed elaborate and carefully prepared briefs analyzing the testimony, and seek a reversal on the ground that the decrees are against the preponderance of the evidence.

We are of opinion that the conclusion reached by the chancellor cannot be supported, even though the facts be as found by him.

As the point on which our decision turns was not made in the court below, nor raised by counsel here, we have been reluctant to dispose of the cause upon it; but since it goes to the very foundation of complainant's right, and an affirmance of the decree would give sanction to other proceedings of like character, we have concluded that the decree ought not to stand, since, assuming every thing to be true that the evidence proves or tends to prove, complainant is not entitled to any relief against the appellants.

The injury for which she seeks relief was not done to property...