K v. Fulton

• Decision Date: 24 November 1924
• Docket Number: 24477
• Citation: 101 So. 857,136 Miss. 637
• Court: Mississippi Supreme Court
• Parties: *K v. FULTON et al. [*]

101 So. 857

136 Miss. 637

*K v. FULTON et al. ^[*]

No. 24477

Supreme Court of Mississippi

November 24, 1924

Division B

1 MORTGAGES. Equity will decree lien on land of mortgagor refusing to execute deed of trust under express agreement.

Where a valid mortgage is executed upon property and an agreement is made between the mortgagor and mortgagee that the mortgagee will cancel the deed of trust of record, on the agreement of the mortgagor to apply money to be procured by another loan on the debt and to execute a second deed of trust on the property embraced in the original deed of trust, and the loan is procured in accordance with the agreement and applied by the mortgagor on the debt, and the mortgagee cancels the deed of trust, after which the mortgagor refuses to execute the second deed of trust, equity will protect the interest of the original mortgagee by decreeing a lien upon the property subordinate to the deed of trust by which the loan was procured.

2 TRIAL. Error to sustain demurrer after cause transferred to chancery court solely because plaintiffs right is at law or because equitable action not strictly presented.

Where a cause is transferred by the circuit court to the chancery court under section 289 (g), Hemingway's Code (section 532, Code of 1906), providing that "the chancery court shall have full jurisdiction in... all cases transferred to it by the circuit court, or remanded to it by the supreme court," and the plaintiff makes up the pleadings in the chancery court after such change, it is error for the chancery court to sustain a demurrer to the bill solely on the ground that the right of the plaintiff is an action at law or because the bill does not present strictly an equitable cause of action.

HON ALLEN Cox, Chancellor.

APPEAL from chancery court of Oktibbeha county., HON. ALLEN COX Chancellor.

Suit by Mrs. Annie Stark against C. L. Fulton and others. From a decree sustaining a demurrer to the bill and dismissing the suit, plaintiff appeals. Reversed and remanded, with leave to answer.

Reversed and remanded.

Daniel & Greene, for appellant.

Under the terms of the written acknowledgment of said indebtedness which was secured by said trust deed, appellee agreed therein to execute and deliver to appellant a second mortgage upon the closing of the loan to the Federal Land Bank on the security then held by appellant. In accordance with the terms of this agreement appellant cancelled her trust deed against said land and received under the terms thereof the sum of six hundred dollars as a part payment on said indebtedness. After the loan was closed with the Federal Land Bank, appellees failed and refused to comply with their former agreement by executing to appellant a second mortgage on said land to secure the balance due her as agreed. At the time the notes and trust deed were given and at the time the written acknowledgment was signed by E. O. Fulton, C. L. Fulton and E. O. Fulton were joint owners and business partners in the security given to appellant.

The only question of importance to be decided in this cause is whether or not the court erred in sustaining the demurrer of appellees and dismissing the suit at her cost. The case was thereafter transferred to the chancery court by the court, after taking same under advisement for several days, which in the opinion of the circuit judge was thought to involve the determination of equitable rights and interests of the parties to the cause. Upon dismissal of this cause by the court below the statute immediately began to run and after one day the note for one hundred and ten dollars aside from the written acknowledgment would have been barred so far as filing another suit in the circuit court as suggested to appellant in the judgment of the court.

Section 532, Code of 1906, section 289 Hemingway's Code, under par. "G," makes it the duty of the chancery court to assume jurisdiction over "all cases transferred to it by the circuit court, or remanded to it by the supreme court." 80 So. 276. It is a well-settled principle of law that if the chancery court acquired jurisdiction of a cause and should herein decide according to equitable methods, although the case did not fall within the scope of equity jurisprudence and belonged properly to the jurisdiction of the law court, such judgment will not be disturbed alone on the ground that the chancery court had no jurisdiction to render judgment. This question is regulated and controlled by section 147 of the Constitution. Section 162, Constitution of 1890, is mandatory and precludes a dismissal by the chancery court for want of jurisdiction. Murphy v. Meridian, 103 Miss. 110. Section 157 of the Constitution is equally mandatory on the circuit court.

The allegations set out in appellant's original bill show that it partakes of the nature of equitable features and under the facts and circumstances the remedy sought cannot be made complete and adequate except through equitable modes of procedure. Appellant, in her bill does not seek altogether a money judgment, but even if she did, this would not destroy the jurisdiction of the court under the prayer of the bill. The bill prayed for specific performance of the contract, or a lien on the land upon which appellant cancelled her trust deed to secure the balance of the debt and concluded with the usual prayer for general relief.

The question raised in this case by the demurrer of appellee, E. O. Fulton, as to homestead rights, which seemed to be the controlling factor with the lower court in sustaining the demurrer, is a question of fact depending on statutory requirements, etc.

B. F. Bell and Will E. Ward, for appellees.

It will be noted that the prayer for relief is for a specific performance of the contract set out in the declaration in the circuit court, and that defendant be compelled by decree of the court to execute to appellant a deed of trust on the lands described in the bill, to secure the balance due appellant, "or, that a lien be decreed or ordered by the court upon said property to the extent of the amount now owing, with interest thereon, as set out in this cause etc." While it is peculiarly within the jurisdiction of the chancery courts to compel specific performance of contracts, yet, the chancery courts cannot enforce specific performance of a contract which would result in no relief to the complainant. They rely upon the enforcement of only one contract, "Exhibit B," to which they specifically refer and is the sole ground of relief sought by them. This contract being signed only by Mrs. Annie Stark, the appellant, and E. O. Fulton, and it being admitted in the bill that the property is the homestead of E. O. Fulton and his wife, Mrs. E. O. Fulton, surely it would be a vain thing for the court to decree that E. O. Fulton execute a deed of trust upon it without his wife's signature to same, the only result of which would be to give a void deed of trust to the...