Joseph L. Moyse & Bro. v. Louis Cohn & Bro

• Decision Date: 27 February 1899
• Citation: 76 Miss. 590,25 So. 169
• Parties: JOSEPH L. MOYSE & BRO. v. LOUIS COHN & BRO
• Court: Mississippi Supreme Court

25 So. 169

76 Miss. 590

JOSEPH L. MOYSE & BRO. v. LOUIS COHN & BRO

Supreme Court of Mississippi

February 27, 1899

November 1898

FROM the chancery court of Lincoln county, HON. HENRY C. CONN Chancellor.

Cohn &amp Brothers, appellees, were the complainants in the court below; appellants, Moyse & Brother and others, were defendants there.

Cohn &amp Brothers, resident citizens of Lincoln county, were the owners of a debt due from Cicero Boyd, a resident citizen of Lawrence county, which debt was secured by a deed of trust on personal property and crops located in Lawrence county. The trustee in the deed of trust was a resident citizen of Lincoln county. The appellants, Moyse & Brother, were resident citizens of Pike county. They had purchased and converted to their own use a considerable portion of the crops raised by Boyd, the debtor, conveyed by the deed of trust, and had shipped the same out of the state.

This being the state of affairs, Cohn Brothers filed their bill in the chancery court of Lincoln county, where the trustee resided, to foreclose the deed in trust, making the trustee a defendant. They also made Boyd, the debtor, a defendant, and desiring to hold Moyse & Brother for the value of the encumbered crops which the latter firm had converted and shipped out of the state, complainants made them defendants and sought appropriate relief against them. A writ of sequestration was sued out, directed to the sheriff of Lawrence county, where the remaining property could be found, and the same was duly executed.

The defendant Boyd, the debtor, made no objection to the jurisdiction of the court but filed a cross bill seeking to have Moyse & Brother held as primarily liable to complainants. Moyse & Brother, however, demurred to the bill, contending that the suit was wrongfully brought in the chancery court of Lincoln county. The demurrer was overruled by the court below, answers and cross bills and answers to cross bills were filed, evidence taken, and, on final hearing, a decree in complainant's favor was rendered. Moyse & Brother appealed to the supreme court.

Affirmed.

Will A. Parsons, for appellants.

The personal property upon which a lien is claimed is shown to have been in Lawrence county at the time this action was commenced, and the only ground upon which the venue could be in Lincoln county is that a necessary party defendant resided in that county. It is shown that defendant Boyd was a resident of Lawrence county, and that all of the other defendants were residents of Pike county, except defendant Jones, the trustee, who is averred to be a resident of Lincoln county. Is defendant Jones a necessary party defendant within the meaning of § 510, code of 1892? The bill of complaint shows that Jones has no beneficial interest in the suit. He is held out as the naked holder of the legal title, not for his own benefit, but for the purpose of assisting complainants to the relief which they ask in their bill; that is, the foreclosure of the deed of trust. Jones had no rights to defend; had no interest whatever in the outcome of the suit. It is almost impossible to believe that the legislature intended that the residence of such a defendant should govern the venue of a suit equally with the residence of a defendant who has an interest. Appellee's solicitors call attention to the case of Hill v. Boyland, 40 Miss. 618. In that case, however, there was a defendant other than the trustee, who resided in Yazoo county at the time the suit was brought, and who had a beneficial interest in the subject matter of the suit. Even if the court decided in that case as appellee's solicitors contend, it was not such a clear cut, unequivocal settling of the question as can be said to have been adopted by our legislature in re-enacting the statute, and the construction given is so apparently contrary to the intention of the legislature, and contrary to public policy as well, that the case should not be followed. To a defendant against whom no relief is asked, who claims no beneficial interest in the subject matter of the suit, it makes no difference how the cause is decided. But to the party having rights to defend which are assailed by the suit the right to be sued in the county of his residence is substantial, and means a great deal. I cannot believe that the legislature intended by § 510 to sacrifice this substantial right and to allow suit to be brought in the county of the residence of a party to whom it makes no difference where suit is brought. A party having no interest in the subject matter of a suit, no rights to defend, and claiming no right in it, while nominally a defendant, is not defendant in the full sense of that term. In other states, in which statutes provide for the bringing of suits in the county where a defendant resides, it has been held that the defendant meant was one having a beneficial interest in the subject matter of the suit. But the learned solicitors for appellees claim that our statute is much broader, etc., on account of the clause "or any necessary party defendant may reside or be found." The first clause provides for cases where there is only one defendant, and the other clause for cases having two or more defendants. The word "necessary" does not make the statute broader. It seems to me that it showed that the legislature were afraid that the words "or any party defendant" might be given a broader construction than was desired, and the use of the word "necessary" indicates a desire in the legislative mind to limit the meaning of the clause and manifests an intention that no formal party without any interest in the suit should come within the meaning of the clause. If the construction contended for by appellees is correct it certainly may occasion great hardship to some, and would throw open the door to oppression and fraud.

Mc Willie & Thompson, for appellees.

Moyse & Bro., under frequent decisions of this court, notice being properly brought home to them of complainant's deed of trust on the crops, are liable to Cohn Bros. for the value of the cotton which they received from Boyd and converted to their own use, the liability not exceeding the mortgage debt.

The chancery court of Lincoln county did have jurisdiction, and the venue was properly laid there. In maintenance of this contention we lay down two propositions as preliminary to a consideration of our statute on the subject of venue in the chancery courts, and which are beneficial, if not necessary to be borne in mind in order to insure a correct construction of its terms: (a) The trustee in a deed of trust is a necessary party to a suit in equity to foreclose the deed. Hill v. Boyland, 40 Miss. 618, 640; Harlow v. Mister, 64 Miss. 25. (b) A suit to foreclose a trust deed or mortgage is not local, but transitory, and may, if the statute does not provide to the contrary, be brought wherever there is jurisdiction of the parties. ...