Jones v. Spearman

• Decision Date: 13 January 1936
• Docket Number: 32024
• Court: Mississippi Supreme Court
• Parties: JONES et ux. v. SPEARMAN et al

165 So. 294

174 Miss. 781

JONES et ux. v. SPEARMAN et al

No. 32024

Supreme Court of Mississippi

January 13, 1936

Division B

Suggestion Of Error Overruled March 23, 1936.

APPEAL from the chancery court of Itawamba county HON. JAS. A FINLEY, Chancellor.

Suit by M. A. Jones and wife against S. J. G. Spearman and another wherein defendants filed a cross-bill. Decree for defendants, and complainants appeal. Affirmed.

Affirmed.

I. L. Sheffield, of Fulton, for appellants.

Appellant met the requirements of the statute and the court granted the injunction but upon the hearing instead of fixing the rental value, the reasonable, normal value of the property, or the income from the property he granted an order directing the immediate sale thereof.

The learned chancellor made a fatal error in granting an immediate order of sale. This could not have been done if the mortgagee had himself filed the bill and I respectfully say that the Moratorium Act supersedes all other sections of the code during the period of its life.

This court has already passed upon the constitutionality of the Moratorium Act.

Wilson Banking Co., Liquidating Corp., v. Colvard, 172 Miss. 804.

After the rendition of the decree by the chancellor, W. C. Bourland, Commissioner, in pursuance of the order of the chancery court made at the April term, 1935, published a notice of sale. In the meantime M. A. Jones, complainant, and his wife, Mrs. Mattie Jones, had made another application to the Federal Land Bank and the loan requested had been refused and so the complainant filed another bill seeking another injunction and showing in this bill a copy of the letter from the Federal Land Bank refusing the loan of M. A. Jones and showing that he was unable, under federal regulations, to refinance this loan. The court rendered a decree refusing to grant this injunction and I respectfully submit to this court that it is simple and elementary that in this the learned chancellor committed fatal error.

The second notice published by W. C. Bourland, Commissioner, in pursuance of the decree of the chancery court was fatally in error. It gave the names of the mortgagors as merely M. A. Jones when in truth and in fact the mortgagors, whose names are required to be given, were M. A. Jones and wife, Mrs. Mattie Jones. The statute requires the names of the mortgagors to be published in the notice and is mandatory and it requires the names of all the mortgagors and a notice which does not give the names of the mortgagors is void. This notice did not give the names of the mortgagors and is, therefore, void.

Wilkinson v. Federal Land Bank, 168 Miss. 645; Section 2167, Code of 1930; Gilliam v. McLemore, 141 Miss. 253, 106 So.99.

It was the duty of the court to take proof as provided by section 4, chapter 247 of the Laws of 1934, as to the reasonable rental value, etc., and requiring the mortgagor to pay such part thereof as appeared to the court to be equitable under the facts. The court failed to do this and took the theory that although the injunction had been granted and that question was "moot" yet he held that the complainant had not complied with the act.

Homer F. Benson, A. T. Cleveland, and W. L. Elledge, all of Fulton, for appellees.

This chapter was passed by the Legislature to grant relief to debtors in distress from inequitable foreclosures of mortgages on real estate.

Rea v. O'Bannon, 171 Miss. 829; Chapter 247, Laws of 1930.

What is this mortgage moratorium law? May a debtor just lay down on his creditor and hold on until dispossessed by law? The proof in this case shows we contend that such is exactly what appellant was doing.

The courts are open to mortgage creditors desiring to foreclose mortgages or deeds of trust on real estate; and if, on the hearing of the cause, it shall be determined that a foreclosure would, under the circumstances, be inequitable, the proposed sale may be postponed, etc.

Wilson Banking Co., Liquidating Corp., v. Colvard, 172 Miss. 804.

We see that as the cases begin to come in for decision under this chapter that judicial discretion and equitable principals remain with the chancellor and his court.

We thus see that a mortgagor may not openly indicate to the world every indication of purpose to abandon his contract of indebtedness and to hold on to the land until removed by judicial process.

Such mortgagor, once having assumed such an attitude, may not then avail himself of the provisions of the moratorium law to further his fraudulent designs.

Pleading in the language of the statute must fall when it runs counter to the equally established rule that ultimate facts are required to be alleged and not conclusions either of law or fact. When he avers that he is unable, etc., to refinance, he avers a conclusion which is not good either preliminarily or ultimately. He should have averred sufficient facts from which it might appear that he was unable to refinance.

59 C. J. 1199, par. 739; 32 C. J., page 398.

The court having jurisdiction of both the subject-matter and the parties then under the pleadings it takes the only course open to it to give full and final relief, to-wit, a sale of the land and a writ of possession against the appellant, it being found by the court that appellant all along had no right to anything else.

The procedure set up for the enforcement of this statute does not contemplate a cross-bill by a mortgagor.

Rea v. Turner, 163 So. 539.

The court below found that appellant had made no application to any government agency for two and a half years prior to the time he filed his bill. The petitioner said in his sworn bill that he was unable to finance through government agencies. He had not tried to finance through such, had made no effort whatever. The court will take judicial notice of the activities and facilities of government agencies.

Wilson Banking Co. v. Colvard, 172 Miss. 804.

This appellant made a willful false allegation; by means of it he set in motion the most powerful agency Of a court of equity, its extraordinary writ of injunction. No matter that there may not have been culpable intent. The legal effect is the same.

13 C. J. 8, par. 10-C; 32 C. J., page 67, par. 50, and page 403, par. 682.

It is a constructive fraud on the court for a petitioner to act as did appellant in the lower court. The conduct of appellant as shown by his own testimony and his own acts and conducts throughout the existence of this indebtedness, coupled with this last monstrous, contemptuous fraud on the court moved the court justly and correctly to the judgment that this appellant had not complied with the statute and that this sale was unjustly restrained and that appellant had no right to invoke the statute or any known equitable right and that appellee had a right to be placed in statu quo as of the wrongful suing out of the writ of injunction and had a right to subject this security to the payment of his note.

Everybody knows that when the court orders a sale it is in nearly every case made by its clerk for the simple reason the clerk is already under bond and this eliminates the question of bond and the faithful application by the commissioner of the proceeds of a sale.

German-American National Bank v. Interstate Bank, 114 Miss. 740.

OPINION

Anderson, J.

Appellants M. A. Jones and wife, filed their bill in the chancery court of Itawamba county against appellees, Spearman and the trustee in a deed of trust held by Spearman on eighty acres of land owned by appellants, seeking under the mortgage moratorium statute (chapter 247, Laws 1934) to enjoin the foreclosure of the deed of trust in pais. The cause was heard on original bill, answer, and cross-bill, proofs, and exceptions to the commissioner's report. There was a final decree dismissing the original bill and...