Love v. Mississippi Cottonseed Products Co.

• Court: Mississippi Supreme Court
• Writing for the Court: Smith, C. J.
• Citation: Love v. Mississippi Cottonseed Products Co., 174 Miss. 697, 159 So. 96, 165 So. 446 (Miss. 1936)
• Decision Date: 03 February 1936
• Docket Number: 30991
• Parties: LOVE, SUPERINTENDENT OF BANKS, v. MISSISSIPPI COTTONSEED PRODUCTS CO

159 So. 96

165 So. 446, 174 Miss. 697

LOVE, SUPERINTENDENT OF BANKS, v. MISSISSIPPI COTTONSEED PRODUCTS CO

No. 30991

Supreme Court of Mississippi

February 3, 1936

Division A

January 21, 1935

APPEAL from the chancery court of Sunflower county HON. J. L WILLIAMS, Chancellor.

Suit by J. S. Love, Superintendent of Banks, against the Mississippi Cottonseed Products Company. From a decree dismissing the bill, complainant appeals. On motion to dismiss the appeal. Motion overruled.

Suit by J. S. Love, Superintendent of Banks, in charge of liquidation of the Sunflower Bank, against the Mississippi Cottonseed Products Company. From an adverse decree, the complainant appeals, and, upon abolition of office of superintendent of banks, Forrest G. Cooper was appointed receiver of the Sunflower Bank, and was authorized to revive and prosecute the appeal. Affirmed.

Motion overruled. Affirmed.

Moody &amp Johnson, of Indianola, and Green, Green & Jackson, of Jackson, for appellee, on motion.

No appeal bond was filed by the appellant pursuant to the provisions of sections 28 or 29 of the Code of 1930. The decree in this cause was rendered on the 19th day of May 1933, and hence the right to file an appeal bond has expired pursuant to the provisions of section 2323 of the Code.

It is submitted that the appellant, even if a state officer, is not an official representing the state in the suit disclosed by the record in this case.

Section 76, Code of 1930.

Even if it be conceded, and this is a doubtful concession, that the appellant is a party to the suit, disclosed by the record in this case, in his official character, yet undoubtedly this is not a suit in which the state is beneficially interested.

Love is not a public officer and cannot so be.

Chapter 336, Laws of 1933; Love v. Sunflower County, 144 So 856; Love v. State, 145 So. 619; Sections 102 and 250 of the Constitution; McCool v. State. 149 Miss. 82, 115 So. 121; State v. Henry, 87 Miss. 125, 40 So. 152, 5 L.R.A. (N.S.) 340; Wynn v. State, 67 Miss. 312, 7 So. 353.

To make the statute constitutional, it must be construed that Love is not in that hereunder done an officer.

State v. Gilmer Grocery Co., 125 So. 710; Smith v. Chickasaw County, 125 So. 96; Mai v. State, 152 Miss. 225, 119 So. 177; Money v. Wood, 152 Miss. 17, 118 So. 357; Thompson v. Box, 147 Miss. 1, 112 So. 597.

In order to render that done effective, Love must not be a public officer, and the Legislature so knew, and to that end he will have to be held to be a mere employee.

State v. Miller, 144 Miss. 614, 109 So. 900; Shilling v. State, 143 Miss. 709, 109 So. 737; Robinson v. State, 143 Miss. 247, 108 So. 903; Association v. Hemphill, 142 Miss. 298, 107 So. 24; Hinds County v. Johnson, 133 Miss. 591, 98 So. 95; Miller v. State, 130 Miss. 564, 94 So. 706; State v. Wheatley, 113 Miss. 555, 74 So. 427; Richards v. City Lbr. Co., 101 Miss. 678, 57 So. 977; Johnson v. Reeves, 112 Miss. 227, 72 So. 925; Sterrett v. Second National Bank 248 U.S. 135, 3 A.L.R. 256, 246 F. 753; Bullock v. Oliver, 155 Ga. 151, 29 A.L.R. 1486; Grant v. Leach, 280 U.S. 361; Moore v. Mitchell, 281 U.S. 23.

Cooper & Thomas, of Indianola, for appellant, on motion.

It is conceded, as contended by the appellee, that the statutory authority, if any, giving the appellant the right to appeal without bond is contained in section 76 of the Code of 1930.

The superintendent of banks of this state in a suit to recover assets, as the present case, does so as a state officer.

Gift et al. v. Love, 144 So. 562; Section 2887, Code of 1930; Bank of Oxford v. Love, 111 Miss. 699, 72 So. 133.

In bringing the present actions, or similar or any actions at law or in equity to recover assets for a failed institution, Love is merely carrying out and discharging the duties enjoined upon him by the statutes.

Section 3817, Code of 1930.

To say that the state must be "beneficially interested" does not of necessity imply and mean that all, and all parts, of the state must be "beneficially interested." When it is said that the "public" must be "beneficially interested" in a project for legislative action, by such statement is not meant that "all" of the "public" must be interested.

State v. Whitesides, 30 S.C. 579, 9 S.E. 663, 3 L.R.A. 777; State v. Coahoma County, 64 Miss. 358.

Love, as a public or state officer, is interested in the performance of his duties as such officer because the imposition of such duties upon him causes him to be the state or public officer that he is.

46 C. J., sec. 308, page 1037, and page 922, sec. 2; Hudson v. Gray, 58 Miss. 589; Mercantile Trust Co. of San Francisco v. Miller et al., 166 Cal. 563, 137 P. 913; Miller v. Phipps, 119 So. 170.

Even though the appellant did not have the right to appeal without bond, his appeal cannot be dismissed because of the beneficent provisions of section 3375 of the Code of 1930.

State v. Coahoma County, 64 Miss. 358; Cleveland State Bank v. Cotton Exchange Bank, 118 Miss. 768; Hudson v. Gray, 58 Miss. 589; Wills v. Howie Brothers, 109 Miss. 568; Purity Ice Cream Co. v. Morton. 127 So. 276.

Flowers, Brown & Hester, of Jackson, and Cooper & Thomas, of Indianola, for appellant.

A valid lien on chattels, when the deed of trust or mortgage complies with chapter 243, Laws of 1920, is conveyed, regardless of whether the instrument is construed in a law court or when the "principles of equity apply."

Tabb v. Peoples Bank & Trust Co., 133 So. 137.

The mortgage in question further provided that should the indebtedness be paid in full by December 15, 1929, then the instrument was void; otherwise, said mortgagee had the right to sell, which right, of necessity, included the right of possession. Then, from September 25, 1929, the date of mortgage, to December 15, 1929, or thereafter, if any injury or damage was done to the security, i. e., the cottonseed, then the Sunflower Bank had a right of action on case against the tort-feasors, whether mortgagor or purchaser or both.

11 C. J. 9, sec. 19.

On and after December 15, 1929, when Sunflower Bank had the right of possession to the security and had a lien thereon, a cause of action in trover and conversion lay.

26 R. C. L., page 1131, sec. 41, and page 1136, sec. 47.

In order to maintain trover and conversion, of course, the mortgagee must have the right of possession, or possession.

Buck v. Payne, 52 Miss. 271.

Concededly, the one thousand two hundred eighty-seven dollars and sixty-six cents owing was for seed purchased nearest and next to the end of the season on the principle of "first money in is the first money out."

Watkins v. Buchanan, 115 So. 773; Travis v. Mosley, 114 So. 628.

We need not go afield for precedents or cases to prove our contention that an action lay against the defendant company in the purchase of said seed, without there being an accounting to the mortgagee or lienholder.

Evans v. Carpenter, 115 Miss. 572, 76 So. 550; Pippin v. Farmers' Warehouse Co., 51 So. 882.

We think that we have satisfactorily and clearly shown that the sum of one thousand two hundred eighty-seven dollars and sixty-six cents with legal interest thereon could have been recovered by the Sunflower Bank, while a going institution and after the date of the conversions by defendant oil mill. But, by statutory corporate dissolution, said institution "went the way of all flesh," and Love, as superintendent of banks took charge thereof, including all assets. Did not the cause of action that the Sunflower Bank had against the defendant pass to said superintendent?

The right of action against the defendant company was not specifically conveyed or set out, and because of such fact, said cause of action was not thus conveyed, but remained in Love.

Gabbert v. Wallace, 66 Miss. 618; Love v. Miss. Cottonseed Products Co., 137 So. 739.

The present cause of action is certainly an asset dependent upon suit to recover, as it is now in process of suit. Inasmuch as such right of action passed to the superintendent of banks on his taking over the Sunflower Bank as shown by section 3817 of the Mississippi Code of 1930, and it has been judicially declared that said cause of action was never conveyed or transferred to the Merchants Bank & Trust Company, then the right of action still exists on behalf of the superintendent of banks when this suit was instituted, and which Forrest G. Cooper, receiver, is now continuing to prosecute. It is such a right of action as will pass, because it is assignable and transferable.

38 Cyc., page 2051, sec. (v) and sec. (11); Coleson v. Blanton, 4 Tenn. 152; Thompson v. Ford, 29 N.C. 418; 22 Am. Dec. 582; 7 C. J. 131, sec. 220; Section 3817, Code of 1930; 23 R. C. L. 116, sec. 124.

The security which the Sunflower Bank held was diminished and impaired, at the least, in the sum of one thousand two hundred eighty-seven dollars and sixty-six cents, and said sum was converted by defendant oil mill, and appellant is entitled to a decree for said sum with legal interest from the date of conversion, January 31, 1930, as against appellee.

1 C. J. 1115, sec. 294.

Moody & Johnson, of Indianola, and Green, Green & Jackson, of Jackson, for appellee.

The extent of the right of the mortgagee, after a sale by the mortgagor, was to take possession of the seed sold, and sell it according to the provisions of the mortgage, and to have an appropriation of the proceeds to the satisfaction of the debt owing by the mortgagor to the mortgagee secured by the mortgage; or, recover from the purchaser, the appellee, the market value of the seed purchased to the extent of the unpaid debt secured by the mortgagee. This, as we understand it, is settled law.

Black v. Robinson, 61 Miss. 64; 11 C. J. 623, sec. 338.

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