Jones v. Levy
| Decision Date | 22 June 1908 |
| Docket Number | 12,988 |
| Citation | 46 So. 825,92 Miss. 551 |
| Court | Mississippi Supreme Court |
| Parties | PAUL JONES v. LEWIS LEVY ET AL |
FROM the chancery court of Yazoo county, HON. G. GARLAND LYELL Chancellor.
Levy and another, appellees and cross-appellants, were complainants in the court below; Jones, appellant and cross-appellee, and one Gadberry, trustee, were defendants there. From a decree overruling a demurrer to the amended bill defendant, Jones, appealed, and from the prior decree of the court sustaining a demurrer to the original bill complainants cross-appealed to the supreme court.
The opinion of the court states the facts.
Reversed.
Campbell & Campbell, for appellant and cross-appellee.
The utmost right of the complainants is to have the deed of trust of January 22, 1894, reformed and then to have the reformed deed of trust foreclosed. This is obvious for the reason that to grant reformation of both the deed of trust and the trustee's deed, and not to reform the deed of trust and require a re-sale by the trustee or foreclosure in equity would be to divest the title of Jones, the grantor, contrary to the agreement of the parties and without authority of law. If the trustee advertised and sold the land as described in the deed of trust, and the description of the land therein is incorrect, it must follow that the title of the grantor has never been legally divested. If the trustee disregarded the description of the land in the deed of trust, and sold other land not described in the deed of trust, he of course sold land without authority and the title of the owner of the land was not divested.
If, for instance, a party living in Yazoo City wished to give a deed of trust on his lot 540 in Yazoo City, but by mistake described the property in the deed of trust as being lot 540 in the city of Jackson to which he had no title, and the trustee in the deed of trust, after default made, should advertise and sell lot 540 in the city of Jackson, and make deed to the purchaser at the sale, would the title of the owner in lot 540 in Yazoo City be divested by such sale? Manifestly not. Nor would title be divested, if the beneficiary, before advertisement and sale, should notify the trustee to advertise and sell lot 540 in Yazoo City but to make his trustee's deed to the purchaser to convey title to lot 540 in the city of Jackson, in conformity with the language of the deed of trust.
It is evident that the original bill was drawn upon the theory that the deed of trust described the land as the S. 1/2 of S. 1/2 of N. 1/2 of the section, and the allegations of the bill are based upon this assumption. If, then, the description in the deed of trust be the S. 1/2 of the S. 1/2 of the W. 1/2 of the section (as we contend it is) then the allegations of the original bill, to which the deed of trust is an exhibit, must fall before the exhibit, for the exhibit must control. House v. Gumble, 78 Miss. 259, 29 So. 71; McNeill v Lee, 79 Miss. 459, 30 So. 821.
The chancellor, in sustaining the defendants' demurrer to the original bill, held that the original bill should have prayed specifically for reformation of the deed of trust, his finding being that, as between the allegations of the original bill and the handwritten description in the deed of trust, the description intended was the S. 1/2 of the S. 1/2 of the W. 1/2 of the section. He then permitted the complainants to amend their bill so as to pray specifically that the deed of trust itself should be reformed. Defendants then demurred to the bill as thus amended, and this demurrer was overruled. The complainants should have prayed for reformation of the deed of trust, that it be changed so that its description should be the S. 1/2 of the S. 1/2 of the N. 1/2 of the section, and should then have prayed foreclosure of the reformed instrument in pais or in equity. Roger v. Abbott, 37 Ind. 138; Miller v. Kolb, 47 Ind. 220; Walton v. Cox, 67 Ind. 164; Conger v. Merides, 75 Ind. 443; Wan v. Johnson, 55 Mo. 500, 66 Mo. 662; Mason v. White, 11 Barb., 173; Ward v. Beecher, 19 Ill. 291, 68 Am. Dec., 596; Bowman v. Andrews, 52 Miss. 596; Cogburn v. Hunt, 56 Miss. 718; McFarland v. Aetna Life Ins. Co., 108 Ind. 130; Lucas v. Am., etc., Mtge. Co., 72 Miss. 366, 16 So. 358.
The cases of Wise v. Brooks, 69 Miss. 891, 13 So. 836, and Moore v. Crump, 84 Miss. 612, 37 So. 109, cited by counsel for appellees and cross-appellants, do not change the principle above set forth. Under the pleadings there can no injustice be done to complainant, Levy, by permitting the deed of trust in question to be reformed so as to fix a lien on the S. 1/2 of S. 1/2 of N. 1/2 of section 21, for the amount secured by the deed of trust, and permitting the deed of trust then to be foreclosed. But this is the full extent of remedy to which he can be entitled. Counsel for complainants may contend that this would allow the defendants to plead the bar of the statute of limitation against the debt, but this is not true. This court has decided in several cases, that a court of equity would enjoin the prosecution of an ejectment suit by the original grantor in the deed of trust against a purchaser thereunder in possession of the land concerned, and that the grantor could not, in such instance, plead the bar of the statute of limitation. Lucas v. Am., etc., Mtge Co., supra.
Henry, Barbour & Henry, for appellees and cross-appellants.
That a court of equity has authority to reform a conveyance by a trustee under a deed of trust so as to make it conform to the deed of trust and intent of all parties is self evident.
The specific prayer of the original bill is that the description of the deed of trust be reformed so as to read the S. 1/2 of the S. 1/2 of the N. 1/2 of the section, instead of reading the S. 1/2 of the S. 1/2 of the W. 1/2 of the section; and that the complainants be granted general relief. The chancellor sustained the defendants' demurrer to the original bill on the ground that the deed of trust of date, January 22, 1894, made exhibit to the bill, showed that the description actually was the S. 1/2 of the S. 1/2 of the W. 1/2 of the section, and that, as the exhibit contradicted the averments of the original bill in regard to the description, the exhibit must prevail. The chancellor then permitted the complainants to amend the bill so as to pray specifically that the aforesaid deed of trust, as well as the trustee's deed, be reformed; and overruled defendants' demurrer to this amended bill.
We are not unmindful of the fact that this court has more than once decided that where the exhibit contradicts the bill, the exhibit must prevail. Such is the case, however, only where it is perfectly clear that the exhibit does contradict the bill. The original deed of trust in this case is made a part of the record, and the court can determine whether the ink-written description places the land in the S. 1/2 or in the W. 1/2, of the section.
The demurrer to the original bill should have been overruled because, under the allegations of the original bill and under the prayer therein for general relief, the complainants are certainly...
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