Jones v. Lamensdorf

• Decision Date: 20 April 1936
• Docket Number: 32094
• Citation: 167 So. 624,175 Miss. 565
• Court: Mississippi Supreme Court
• Parties: JONES et al. v. LAMENSDORF et al

167 So. 624

175 Miss. 565

JONES et al. v. LAMENSDORF et al

No. 32094

Supreme Court of Mississippi

April 20, 1936

Division B

1 USURY.

Charging of interest in excess of twenty per cent, per annum on loan secured by note and trust deed held to invalidate entire transaction and to authorize forfeiture of both principal and interest (Code 1930, section 1946).

2 MORTGAGES.

Grantee of trust deed, providing that it was to secure advances subsequently made, only had right to personal judgments against grantors for such advances, since trust deed was invalid for purpose of securing such advances.

3 HOMESTEAD.

Tenant in common occupying land as homestead with consent of his cotenant is entitled to homestead exemption (Code 1930 section 1765).

4. HOMESTEAD.

Homestead right is founded upon ownership of some assignable interest in land (Code 1930, section 1765).

5. HOMESTEAD.

Tenant at will of land containing dwelling is entitled to homestead exemption (Code 1930, section 1765).

6. HOMESTEAD.

Signers of trust deed who were married and living upon land conveyed by such deed as a homestead held entitled to homestead exemption where their spouses did not sign deed (Code 1930, section 1765).

7. HOMESTEAD.

In suit to invalidate trust deed on ground that some of signers of deed were married and occupying land conveyed as a homestead and that their spouses did not sign deed, exclusion of evidence of common-law marriage held error (Code 1930, section 1765).

8. MARRIAGE.

Common-law marriage is valid and may be established by showing agreement between parties that they are husband and wife, followed by cohabitation.

9. HOMESTEAD.

Homestead exemption would prevent declaration of lien on homestead land for debts which occupants themselves owed as well as debts of others (Code 1930, section 1765).

10. USURY.

Grantee, under trust deed invalid because part of usurious transaction, held entitled to reimbursement from grantors for payments made by him on prior incumbrance to preserve property.

11. USURY.

Amount of taxes paid by grantee under trust deed, which was invalid because part of usurious transaction, and improvements made upon property during period land was occupied by such grantee after foreclosure of trust deed should be considered in connection with rental due grantors for occupation of land during such period.

12. USURY.

Measure of value of rent due grantors from grantee under trust deed, invalid because part of usurious transaction, for period grantee was in possession of land after foreclosure of trust deed held to be what premises were reasonably worth when skillfully managed and not what he actually made.

HON. R. E. JACKSON, Chancellor.

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

Suit by Hattie Thornton Jones and others against M. Lamensdorf and others. From an adverse decree, complainants appeal. Affirmed in part, reversed in part, and remanded.

Affirmed in part and reversed in part, and remanded.

Shands, Elmore, Hallam & Causey, of Cleveland, for appellants.

The decree ordering land to be sold and appointing commissioner to make the sale was beyond the scope of the pleadings.

Rosenbaum v. Hammack, 96 Miss. 462, 51 So. 213; Griffith's Chancery Practice, sec. 612; Hibernia Savings & Loan Society v. Thornton, 55 P. 702; First Baptist Church v. Fort, 54 S.W. 892.

Five days in which to perform decree by payment is totally inadequate and unreasonable.

Griffith's Chancery Practice, sec. 626, page 716; Hebron v. Kelly, 77 Miss. 54, 23 So. 641, 25 So. 877; Gray v. Bryson, 87 Miss. 309, 39 So. 694; Mclntyre v. Whitfield, 21 Miss. 88 (13 S. & M.); Hoops v. Burnett, 26 Miss. 428.

Neither Mattie Phillips, nor her husband, Manuel Phillips, having signed Lamensdorf notes and deed of trust, it was error to charge either of them or Mattie's interest in the land with the Lamensdorf debt.

The land being the homestead of Clayton Thornton, Robert Thornton and Susie Bass, the Lamensdorf deed of trust was void as to their interest for failure of the wives of the first two and the husband of the latter to join in its execution.

Lewis v. White, 69 Miss. 352, 13 So. 349; Livasy v. State Bank, etc., 170 N.W. 756.

If Virginia Thornton was Clayton Thornton's wife at the time the Lamensdorf deed of trust was executed, her failure to join in the deed of trust, rendered it void as to Clayton's one-seventh undivided interest in this land. At the time the deed of trust was executed, Virginia was temporarily away from the place on account of her physical condition. But there is no evidence, or claim, that she had abandoned the property. The home of the husband is that of the wife. Virginia and Clayton were married prior to January 28, 1930, which is the date the deed of trust was executed, and at that time she and Clayton were expecting a child to be born, the fruit of the marriage.

Ladner v. Pigford, 138 Miss. 461, 103 So. 218.

It is immaterial whether the last marriage be a ceremonial marriage or a common law marriage.

Howard v. Kelly, 111 Miss. 285, 71 So. 391, Ann. Cas. 1918E 1230; 38 C. J. 1318; Cartwright v. McGowan, 12 N.E. 737.

The exclusion of evidence of a common law marriage between Robert and Clara Thornton was error.

Sims v. Sims, 122 Miss. 745, 85 So. 73; Sykes v. Sykes, 162 Miss. 487, 139 So. 853; Section 2363, Code of 1930; Hunt v. Hunt, 172 Miss. 732, 161 So. 119.

Marriage may be proved by parole.

38 C. J., page 130, sec. 105, and page 335, sec. 108.

If Robert and Clara entered into a contract of marriage which was followed by cohabitation, the marriage was good not only as between themselves, but as to the whole world.

18 R. C. L. 392, sec. 13; Barton v. State, 143 So. 861.

Under Mississippi law the only requirement to fix the status of a homestead is that the land and building be owned and occupied by a householder having a family.

Sections 1821 and 1822, Hem. Code 1917 (Code 1930, sections 1765 and 1766).

The same rule applies where the wife owns the homestead.

Sec. 1779, Code of 1930.

It is the policy of the courts to liberally construe the facts in each case, as well as the statutes, in favor of homesteads.

Pocoke v. Peterson, 165 S.W. 1017.

M. Lamensdorf was a volunteer in discharging prior liens and in making improvements.

Slaton v. Alcorn, 51 Miss. 72; Foote v. Cotting, 80 N.E. 600; Preston v. Banks, 71 Miss. 601, 14 So. 258; Edwards v. Hillier, 70 Miss. 807, 13 So. 692; Brown v. Nevitt, 27 Miss. 801, 823; 60 C. J. 707, par. 19.

Allowance for improvements was error.

Wilies v. Brooks, 45 Miss. 542; Storey's Eq. Jur.; Bright v. Boyd, 1 Story; Hicks v. Blakeman, 74 Miss. 459, 481.

The account was improperly stated by the court, and the rule as to application of payments ignored.

Kimbrough v. Carter, 129 Miss. 337, 92 So. 229; Fletcher v. Gilliam, 62 Miss. 8; Poindexter v. LaRoche, 7 S. & M. 699, 713; McLaughlin v. Green, 48 Miss. 175; Neal v. Allison, 50 Miss. 175; Windsor v. Kennedy, 52 Miss. 164; Duffy v. Kilroe, 116 Miss. 7, 76 So. 681; Sunflower County v. Bank of Drew, 136 Miss. 191, 101 So. 192.

The notes and deed of trust in question had been materially altered after their delivery. The alteration was made so as to make it appear that the interest was to run from maturity instead of from date.

It is of course plain that the purpose of the alteration was to try to cover up the usurious interest charges in the transaction.

Section 2781, Code of 1930.

It is a well established rule that any alteration, in an instrument for the payment of money, of a clause relating to interest is a material change discharging from liability on the instrument any parties thereto who did not consent to the alteration.

Brannon's Negotiable Instruments Law, sec. 125; 1 R. C. L., page 997, sec. 10, and page 968, sec. 4; Upton v. Bush, 141 Miss. 660, 107 So. 284; 3 R. C. L. 1112, sec. 328; Peeples v. Clark, 139 Miss. 47, 103 So. 500; 2 C. J. 1189, sec. 31.

Roberts & Smith, of Cleveland, for appellees.

The contention of the appellees is that the deed of trust was executed, a contract was made between the parties which covered two different items, namely: the three notes described therein as specific items of "any amount, or amounts, in addition to the above described promissory notes." The contract was effective to secure the promissory notes; it was also effective to secure any additional amounts furnished prior to the cancellation of the deed of trust. The record is clear that additional amounts were furnished and our contention is that such amount were secure by the deed of trust, even though the promissory notes should be held usurious and therefore not enforceable. In other words, the obligation secured by the additional amount clause is severable and is secured by the deed of trust.

Wilizenski v. Everman, 51 Miss. 841.

When the obligation is severable, and a part thereof can be assigned to the usurious consideration, and a part to a consideration that is legal, the courts will enforce such part of the obligation as rests on the valid consideration, visiting the penalties of usury only on that part which is supported by the illegal consideration.

Davis v. Elba Bank & Trust Co., 114 So. 211, 216 Ala. 632; Compton v. Collins, 67 So. 395, 190 Ala. 499; 66 C. J. 241, par. 185 (b) and 248, par. 200; Weaver Hardware Co. v. Solomovitz, 139 N.E. 353, 235 N.Y. 321.

On the assignment of errors by appellants in the direct appeal, we submit that the position of appellants in the first assignment of errors is correct and that the court below went beyond the scope of the pleadings in the case, and the assignment is well taken to this extent.

The evidence is that the contract was that the...