Grantham v. Ralle

• Decision Date: 20 December 1963
• Docket Number: No. 42836,42836
• Citation: 248 Miss. 364,158 So.2d 719
• Parties: R. Gordon GRANTHAM and Justin McCarty, Inc. v. Mrs. Bobbie RALLE.
• Court: Mississippi Supreme Court

Page 719

158 So.2d 719

248 Miss. 364

R. Gordon GRANTHAM and Justin McCarty, Inc. v. Mrs. Bobbie RALLE.

No. 42836.

Supreme Court of Mississippi.

Dec. 20, 1963.

Ben H. Stone, Brunini, Everett, Grantham & Quin, Jackson, for appellant.

W. E. Gore, Jr., Jackson, for appellee.

BRADY, Justice:

This is an appeal from the Chancery Court of the First Judicial District of Hinds County, in which Mrs. Bobbie Ralle, appellee here and complainant below, filed a petition for a temporary injunction prohibiting the sale of a piece of property situated in the City of Jackson, hereinafter particularly described, under a deed of trust given by her husband, Ralph Ralle, for the use and benefit of Justin McCarty, Inc., a Texas Corporation. A temporary injunction was ordered and issued. Subsequent thereto a petition was filed to make the injunction permanent and for the cancellation of the aforesaid deed of trust as a cloud on the title of the undivided one-half interest in and to the hereinafter described real property which the appellee alleged was hers as the wife and joint owner of this property as her homestead.

On the hearing for making the injunction permanent, the chancellor found that the injunction should be made permanent and so ordered, and also ordered and decreed that the aforesaid deed of trust was null and void and was therefore cancelled. It is from this order and the granting of the permanent injunction and the cancelling of the deed of trust that this appeal is taken.

The record discloses the following pertinent facts: The appellee, Mrs. Bobbie Ralle, is the wife of Ralph Ralle and during the year 1957 they owned and occupied as a residence Lot 104 of East Meadowbrook subdivision, a subdivision in the First Judicial District of Hinds County; that the homestead was located on a street known as London Avenue in said city; that the husband worked the entire year of 1957 in New York, but kept his residence in Jackson at the aforesaid location; that on October 1, 1957, the said Ralph Ralle began employment with Justin McCarty, Inc., in Dallas, Texas; that his employer insisted that he move and take up his residence in said city; that negotiations were entered into between his employer and the said Ralph Ralle to accomplish this end.

The record further discloses that he found and selected a home, and that prior thereto he had lived in a hotel or an apartment before he had selected and began the occupancy of his new homestead in Dallas, Texas. These facts were well known to appellee because sometime between October 1, 1957 and November 25, 1957, she went to Dallas to examine the house which had been selected as a new homestead. She was in Dallas approximately a week and she approved the selection of the home as the new homestead. The record is clear that in order to purchase the new homestead, it was necessary to borrow certain specific sums of money; that on December 3, 1957, in order to purchase the new homestead, Ralph Ralle executed a promissory note in the sum of $8,500 payable to Justin McCarty, Inc.

Ralph Ralle testified that on that date he alone signed a deed of trust on the London Avenue property in the City of Jackson, which was given to the said Justin McCarty, Inc., to secure the aforesaid loan of $8,500. It is important to note that this alleged deed of trust was never produced at the trial, that Ralph Ralle did not have a copy thereof, and it was never recorded; it was supposed to have been executed upon a Texas form of deed of trust.

The record further discloses that during the week of November 25, 1957, Mr. and Mrs. Ralle jointly purchased the home in Dallas, Texas, more particularly described as Lot 4, Michael Street, Block 7/7374 of Jan-Mar Circle, Sec. 3. A warranty deed dated November 25, 1957 was executed to Mr. Ralph Ralle and wife Bobbie Faye Ralle. This deed was acknowledged on December 5, 1957 by W. C. Bonds, receiver to Ralph Ralle, et ux. The consideration in said deed was the sum of $37,500, which amount was advanced by the Metropolitan Savings & Loan Association at the special instance and request of the grantees, and also a $7,500 advancement.

The said Ralph Ralle and wife, Bobbie Ralle, appellee, executed a deed of trust on this same property situated in the City of Dallas to the Metropolitan Savings & Loan Association as security for the aforesaid loan of $37,500. Ralph Ralle and appellee also executed another deed of trust to secure a principal sum of $7,500 evidenced by a promissory note executed by the said Ralph Ralle and his wife and payable to W. C. Bonds, receiver. This second deed of trust was given as security for the advance of $7,500 which was a part of the purchase price of said new homestead in Dallas, Texas. The record shows there was still lacking $1,500 of the purchase price, and this was paid by appellee and her husband from their savings, so that the total cost of the new homestead was $55,000. The $10,000 cash payment was procured from the loan of $8,500 aforesaid which was borrowed by the appellee's husband from Justin McCarty, Inc., plus the $1,500 which appellee's husband took from his savings.

The record discloses further that appellee's husband was with her over the weekends and at Christmas in their homestead in Jackson, Mississippi; that at most only two or three weekends was he required to be away; that on January 15, 1958, their household furniture and personal possessions were moved from Jackson to Dallas and placed in the new homestead which had been purchased there; that on January 16, 1958, they actually took up residence in their new homestead in Dallas.

The record shows that on February 12, 1958 the deed of trust which Ralph Ralle executed, and which has been declared null and void by the court below, was actually executed on February 12, 1958, and this is conceded by both sides. The deed of trust covering the London Avenue property in the City of Jackson, though it bore the date of execution as December 3, 1957, was actually not signed or executed until February 12, 1958, or subsequent thereto. The attorney representing Mr. Ralle testified that he deliberately dated the deed of trust as of December 3, 1957 so that the date would correspond with the date of the note given which was secured by said deed of trust. The note bore the date of December 3, 1957. By examining the photostatic copy of the deed of trust, it is obvious that the insertion '12th' was first written in then marked out and the insertion '3rd' was substituted therefor before the month of December and the date 1957 was written therein. The acknowledgment shows that it was on February 12, 1958, but the record shows that the appellee's husband actually borrowed the $8,500 from appellant on December 3, 1957, the same date on which the alleged first deed of trust was drawn and which was claimed to have been signed on December 5 by appellee's husband.

The property on London Avenue in the City of Jackson was put up for sale on January 15, 1958, by appellee and her husband, and remained on the market for sale for approximately a year but there were no takers. Appellee and her husband returned to Jackson and into the original home which they had owned during the month of February 1960. After the resignation of Justin McCarty, the original trustee, R. Gordon Grantham was appointed substituted trustee in the deed of trust, and upon default by the grantor, Ralph Ralle, under the terms of said deed of trust, notice was given of a substituted trustee's foreclosure sale. It was the notice of said substituted trustee's sale which precipitated the petition filed by appellee for a temporary injunction. The substituted trustee's notice of sale was issued on October 1, 1962, calling for the sale on October 25, 1962. No complaint is made about the validity of the notice of trustee's sale.

The record shows that appellee's husband worked for Justin McCarty, Inc. for approximately six months after October 1, 1957, and because of some misunderstanding or difficulty he severed his connection with appellant. The petition for the temporary injunction, which was not contested, together with the petition to make said injunction permanent, and for cancellation of the deed of trust given by appellee's husband as a cloud upon the title of appellee, and the answer of appellants, clearly place in issue the legal questions of law and issues of fact presented in this cause. An amended petition to make the injunction permanent and for cancellation of the deed of trust as a cloud on title was filed by the appellee herein, but was withdrawn together with a special demurrer thereto.

The fundamental issues which require consideration by this court under the aforesaid statement of facts are simply these: (1) Do the provisions of Sec. 330, Miss. Code of 1942, Recompiled, invalidate the deed of trust given only by appellee's husband which was dated before but was actually prepared, signed, acknowledged and delivered after the husband and wife had admittedly abandoned the homestead upon which the deed of trust was given; and (2) do the provisions of said Sec. 330 invalidate a deed of trust executed by appellee's husband alone on a house in which the husband and wife were residing when said deed of trust was given when the following facts actually existed. (a) Said deed of trust was given to obtain money with which to purchase a new homestead in another state; (b) the money obtained by means of said deed of trust was actually used to purchase a new homestead which had been seen and approved by the nonsigning wife prior to the purchase and before the deed of trust on the old homestead was executed and delivered; (c) both husband and wife actually moved their personal belongings and furniture into the new homestead, established it as a new residence and place of abode and (d) lived in it for some two years; (e) the husband and wife placed the old homestead on the market in an effort to actually sell and...