Lorance v. Platt

• Decision Date: 11 November 1889
• Court: Mississippi Supreme Court
• Parties: MARTHA LORANCE v. EIZA L. PLATT

6 So. 772

67 Miss. 183

MARTHA LORANCE v. EIZA L. PLATT

Supreme Court of Mississippi

November 11, 1889

FROM the circuit court of Hinds county, first district, HON. J. B CHRISMAN, Judge.

Eliza L. Platt brought this ejectment suit to recover from Martha Lorance, tenant of Duffin & Bro., a lot and residence in the city of Jackson. In 1878 the said Eliza L. Platt was the owner of the lot and joined her husband, Eugene Platt, in executing a trust deed thereon to one Halpin as trustee for the Mississippi Valley Bank of Vicksburg, to secure a debt due by her husband to it, for the sum of $ 1015. The bank was a partnership composed of Jno. A. and Geo. M. Klein. Shortly after the execution of the trust deed, the Kleins took possession of the lot under an agreement with Mr. and Mrs Platt that the rents should go to pay the debt, and this possession continued without any accounting until November 21, 1883, when the bank failed and the Kleins made a general assignment of all their banking and individual assets for the benefit of creditors.

The bank was very largely indebted, and immediately after the assignment several hundred creditors sued out attachments and levied upon the property of the Kleins, and garnished their debtors. Among the attaching creditors was the appellee Eliza L. Platt, to whom the bank owed the sum of $ 515 on deposit, and she summoned Eugene Platt, her husband, as garnishee.

Duffin & Bro. also attached and caused their writ to be levied on the lot in controversy, as did several other creditors.

In this condition of affairs the Valley National Bank of St. Louis filed its bill in the chancery court of Warren county against the Kleins and their assignee to cancel the assignment as fraudulent and void as to the creditors. About the same time S. L. Woolridge and others filed a bill in the United States court, for the southern district of Mississippi, against the same parties, and also against the remaining attaching creditors, seeking in one equity suit to set aside the assignment and adjust the priorities of the various attaching creditors, and to enforce the liens. A receiver was appointed by that court who took possession of all the property, real and personal, that had been attached, including this lot. The suit instituted by the Valley National Bank was removed to the United States court, and thereafter the two suits in that court were heard and considered together.

Nearly or quite all of the attaching creditors, among them Eliza L Platt and Duffin & Bro., intervened in the equity suit brought by Woolridge and others and became parties. Thereupon an agreement was entered into and signed by or on behalf of all of them, the purpose of which was stated in the caption thereof to be "to avoid needless expense and costs in the preparation and presentation of their claims against said defendants." The agreement provided for a mode of presenting and proving claims before a master appointed by the court. It further provided that any creditor could, in addition to proving the character and extent of his lien or claim, object to that propounded by any other creditor, and all questions "as to the validity or sufficiency of proceedings or their effect or priority of liens as a matter of law" were to be referred by the master to the court. It was further agreed that the master should cause to be prepared a complete list and description of all the property Owned by said Kleins and a list or docket of the property and the claims or liens asserted against any of it should be made and exhibited, and to this all the creditors should have access and reference.

This list was compiled by the master, and showed the attachment of Duffin & Bro. and that it was levied upon the lot in question. It also showed the attachment of Mrs. Platt and that Eugene Platt, her husband, was garnished on her suit. No objection was made by any one to the two claims thus propounded, and no claim of any sort was interposed by Mrs Eliza L. Platt to the lot thus levied upon by Duffin & Bro., although it does not appear that she was actually informed that it was levied upon, or listed by the master in the schedule compiled by him.

She did, however, file a separate petition in the suit to establish her claim to her homestead in Vicksburg, which had been levied on by a creditor as the property of the Kleins, but which she claimed was her own and merely subject to a small debt due by her to them and to secure which they held the legal title; and as to this she obtained relief in the final decree.

Upon final hearing, at the November term, 1884, the assignment was held to be fraudulent and void, and the property attached was decreed to be liable to the attachments in the order of priority as fixed by the date of the respective levies. The decree recited that it was rendered by consent of all the creditors, and a commissioner was appointed to sell the lands and personal property to satisfy the debts in the order of priority specified in the decree. The lot in controversy was decreed to be sold to pay the debts due to those creditors who had caused their attachments to be levied upon it, among whom was Duffin & Bro., whose claim for a large sum against the Kleins was established.

The garnishees in the various attachment suits were not made parties to the equity proceedings, but the decree contained an enumeration of the garnishees, and specified the creditors who had caused garnishments in their attachment suits to be served on each, and fixed the priority of the liens thus secured. Eliza L. Platt, among others, was decreed to have a lien upon whatever stun was due by Eugene Platt to the Kleins, and her lien was adjudged to be prior to that of all others who had caused him to be garnished. Leave was given in the decree for all creditors who had secured liens by garnishment, and whose liens were recognized in the decree, to proceed to judgment at law; but it does not appear in evidence whether Mrs. Platt ever sought to enforce the lien thus given in the decree by recovering judgment at law against Eugene Platt, her husband.

Pursuant to the decree, the lot in controversy was sold by the commissioner and was bought by Duffin & Bro., who paid part of their bid to the commissioner in cash, the balance being credited upon the decree in their favor. The sale was reported to the court and confirmed, and Duffin & Bro. took possession of the lot.

This suit of ejectment was brought December 29, 1887, by Mrs. Eliza L. Platt against the tenant of Duffin & Bro., and by consent was tried by the court without a jury, resulting in a judgment for the plaintiff, and defendant appeals.

Affirmed.

Brame & Alexander, for the appellant.

We contend: [1] That Duffin & Bro. were invested with the title to the locus in quo by the decree in the United States court, and appellee, who was a party to the proceeding in that court, cannot question their title in a collateral suit. [2] If they failed to get a title, good as against Mrs. Platt by the purchase under the decree, they can still set up the unsatisfied trust deed in favor of Kleins as being a title with which they have connection, and hence the right to possession until redemption or until the rents and profits paid the debt.

We concede that the interest of a mortgagee even in possession cannot be sold under attachment. Code 1880, § 1204; Buckley v. Daley, 45 Miss. 338. But Duffin & Bro. do not occupy merely the position of purchasers of the interest of mortgagees in possession. They bought under a decree in equity in a cause to which they and appellee were parties and in which this lot was expressly condemned to be sold.

Whatever right the Kleins had passed to their assignee, and thus while the assignee had the right to possession, the land was levied upon. The court took possession of it by its receiver and then appellee voluntarily became a party to the suit for the express purpose set out in the agreement to establish her right or claim to any of the property attached. The record in the suit showed that this lot was attached, and the appellee obtained relief in the same decree that condemned this lot to be sold. Thus, in a suit where the court had full jurisdiction of the parties and the subject matter, the lot was sold by the commissioner, the sale confirmed, and the purchase-money paid. Besides being a party by the agreement, the appellant claimed a certain other lot that had been levied on, and obtained relief as to that in the equity suit. Yet it. is contended that while a party, and consenting to the decree, and obtaining relief under it, she is not bound by it. The Kleins, and their assignee, who had the right of possession, and the appellant, who had the title, were all parties and all consented to the decree and the sale. Surely she will not be allowed to recover the land, especially without paying the balance due by her on the trust deed. On this point see Wells Res. Jud., pp. 6 to 11, and pp. 24 to 26; Snowman v. Hartford, 62 Me. 436; Smith v. Walker, 77 Ga. 289; Honaker v. Cecil, 84 Ky. 202. As to who is a party to a suit: McLaughlin v. Green, 48 Miss. 175.

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