Lampton-Reid Co. v. Allen

• Decision Date: 11 January 1937
• Docket Number: 32338
• Court: Mississippi Supreme Court
• Parties: LAMPTON-REID CO. et al. v. ALLEN et al

171 So. 780

177 Miss. 698

LAMPTON-REID CO. et al. v. ALLEN et al

No. 32338

Supreme Court of Mississippi

January 11, 1937

Division A

APPEAL from the chancery court of Pike county HON. R. W. CUTRER Chancellor.

Suit by the Lampton-Reid Company and others against Iverson Allen and others wherein Immer Ball filed a cross-bill. From a decree, plaintiffs appeal. Affirmed in part and reversed in part and remanded.

Affirmed in part; reversed in part, and remanded.

J. N. Ogden, of Magnolia, for appellants.

This court has held time and again that suits on promissory notes are governed by section 2292. That is to say, in Mississippi a suit on a note must be commenced within six years next after its due date and not after.

Section 2290, Code of 1930.

In Mississippi a deed of trust is enforceable only so long as the debt which it was given to secure remains enforceable.

Sections 2154, 2313, Code of 1930.

The deed of trust from the Allens to the Farmers Bank secured an obligation that was due and payable on November 1, 1919 and a statement to that effect appears on the face of the deed of trust. This deed of trust was duly filed and recorded in the office of the chancery clerk of Pike county where it has since remained. The evidence shows that this note was renewed five times, the last renewal being dated January 2, 1924, and which extended payment of the balance due until September 26 1924. The original note was endorsed by Ball, and several of the extensions, including the last just mentioned, were also signed by Ball. However, the evidence conclusively shows, and I assume that counsel will so admit, that not one of these extensions or any fact connected with them was ever noted on the face of the recorded instrument on file in the chancery clerk's office, There can be no possible doubt or question concerning this statement.

When Kenna and Brumfield bought the Ford note, the public records reflected the fact that not only was the Farmers Bank deed of trust barred by the statute of limitations but that the same had been paid and cancelled of record. There is no evidence that they had any actual or constructive knowledge to the contrary. In fact there is not even a suggestion to that effect in any of the pleadings in this record and the truth is they had no knowledge other than as shown by the public records.

The most recent case decided by this court and in which sections 2154, 2290 and 2313 were all construed and applied, is the case of Musser v. First National Bank of Corinth, et al., decided by Division A, Mr. Justice McGowen writing the opinion. This case is reported in 147 Southern, page 783.

In view of the evidentiary weight accorded to the return of process, and of the presumptions in its favor, clear, unequivocal, and convincing evidence is required to negative the return and overcome its statements and recitals.

Reichman-Crosby Co. v. Horton, 143 Miss. 141, 108 So. 443; Rose v. Brister, 145 Miss. 78, 111 So. 129.

This court has gone far in holding the return of the officer as being sufficient. That is true because of the fact that officers are seldom familiar with the exact legal phraseology necessary to reflect their actions. Returns are rarely, if ever, as full as they could be and more often than not are couched in homely words, Therefore, where the essentials are present, together with an expression as to what was done with the writ, our courts have been inclined to uphold the return when it is plain from the return (regardless of the words used) that the officer performed his duty.

Sections 3316, 2978, 2980, 2998, 3320, Code of 1930; State v. Nichols, 39 Miss. 318.

A substantial compliance with the statute is all that our courts require with regard to the return of the officer on a process.

Bacon v. Bevan, 44 Miss. 293; Morehead v. Chaffe, 52 Miss. 161; Rigby v. Le Fevre, 58 Miss. 639; 50 C, J. 565, sec. 269; Smith v. Bradley, 6 S. & M. 485; Presley v. Anderson, 42 Miss. 274; Campbell v. Hays, 41 Miss. 561; Harrington v. Wofford, 46 Miss. 31; McAllum v. Spinks, 129 Miss. 237, 91 So. 694.

It is our position that the return here involved is in every respect regular.

The service of process, rather than a return of service, is the jurisdictional requisite, and the court acquires jurisdiction, if at all, through proper service, and not through the return thereof.

50 C. J. pages 561, 562 and 564, sec. 257; Reichman-Crosby Co., 143 Miss. 141.

Attention is called to the fact that the chancellor who tried these cases failed to find the facts and state his conclusions of law thereon as required by chapter 252 Laws of 1934, and as requested by the appellants. This alone, we understand, is reversible error.

Bullard v. Citizens National Bank, 160 So. 280; Alexander v. Hancock, 164 So. 772; General Tire & Rubber Co. v. Cooper, 165 So. 420.

J. M. Alford, of Tylertown, and Price, Price & Phillips, of Magnolia, for appellees.

It has always been the law in this state as announced in Terry & Co. v. Thornton, 37 Miss. 448; Rucks v. Taylor, 49 Miss. 552; Loughridge v. Bowland, 52 Miss. 546, that the statute of limitations does not begin to run against a surety, an endorser, or an accommodation maker, until the date on which they perform their obligation; the Mississippi rule is in accordance with the general rule.

37 C. J. 860, par. 226.

Regardless of the maturity of the note on November 1, 1919, the statute of limitations did not begin to run as against Ball, an accommodation maker, or indorser, until the date on which he paid the note and a cause of action on the note accrued to him; this date, according to the testimony of Ball, Allen and the cashier of the bank, was on September 26, 1924, or immediately thereafter. As a result the very earliest possible date the six year limitation on the note to the Farmers Bank was completed against Ball and his rights in this transaction alone was September 26, 1930.

However, this debt or note and deed of trust were both renewed on May 8, 1926, and the deed of trust was recorded on March 9, 1927. Both Allen and Ball testified that these two instruments dated May 8, 1926, were renewals of their old Farmers Bank note and deed of trust and the deed of trust recited that it was a renewal. Hence, undoubtedly the statute of limitations never did run against Ball on this debt or the notes evidencing same.

It is universal law that the debt is the principal thing and the lien is but an incident to it. A debt may exist without a lien to secure it but a lien cannot exist without a debt,

State v. Sullivan, 80 Miss. 596, 32 So. 55.

The return on the process in Cause No. 6376 is not only false and fraudulent but absolutely insufficient under the law.

Section 2980, subsection (b), Code of 1930.

A return must show affirmatively that each and all defendants have been served with process in proper manner which this return does not attempt to do.

Section 2313, Code of 1930, providing that completion of the period of limitation extinguishes the right as well as the remedy is not applicable because Ball was never barred from suing on the debt and note.

Counsel for appellants seems to recognize that the above mentioned sections are not specifically applicable and the burden of his argument against Ball's rights is based upon section 2154, Code of 1930. This argument is answered by the decision of this court in Richter Phillips Co. v. Phillips, 166 So. 393.

Section 2708, Code of 1930, provides that a holder in due course is one who becomes such before the note was overdue; and section 2712, Code of 1930, provides that in the hands of one not a holder in due course a negotiable instrument is subject to the same defense as if it were non-negotiable but that a holder who derives his title through a holder in due course has some other rights. Kenna and Brumfield, however, do not come within this exception because they took their title from the Virginia-Carolina Chemical Company who is not shown to have had any title, and the note was made payable to Jerome Ford who never indorsed the same to anyone. Therefore, regardless of every other fact and circumstance, Kenna and Brumfield, who brought the suit in No. 6376, the decree in which Ball challenges as being fraudulent and void, held the Ford note and deed of trust subject to every defense and equity as were available at the time of the execution thereof at which time both were junior to the Farmers Bank note and deed of trust and subject thereto; and what title they received therefrom and thereto they held for the Lampton Reid Company according to its original bill of complaint. In other words, Kenna and Brumfield only took legal title to the note and deed of trust, if their assignor had it which does not appear herein, and a warranty that the same were not forged. These parties apparently recognized this weakness because the deed of trust was assigned to Kenna and Brumfield "without recourse." Hence Kenna and Brumfield were not holders in due course as counsel apparently argues. The deed of trust dated May 8, 1926, in renewal of the Farmers Bank deed of trust, and reciting on its face that it was a renewal, was on record on the date of the assignment, April 4, 1928.

The note and deed of trust were made by Iverson Allen to Jerome Ford; after more than four years the deed of trust came into the hands of Kenna and Brumfield, complainants in No. 6376, by a simple assignment from parties who are not shown to have had any title thereto.

Nugent & Co. v. Priebatsch, 61 Miss. 402; Goodbar v. Dunn, 61 Miss. 618.

The Allens did not appear in court, Jerome Ford was dead, there was a default judgment, and no witnesses testified in the proceeding. Reformation of deed of trust to put more land in it must be only on...