McFarlane v. Plant

• Decision Date: 08 May 1939
• Docket Number: 33697
• Citation: 185 Miss. 616,188 So. 530
• Court: Mississippi Supreme Court
• Parties: MCFARLANE v. PLANT et al

188 So. 530

185 Miss. 616

MCFARLANE v. PLANT et al

No. 33697

Supreme Court of Mississippi, Division B

May 8, 1939

APPEAL from the chancery court of Monroe county HON. JAS. A. FINLEY Chancellor.

Bill in equity by Mrs. Lula S. McFarlane against Mrs. Lena Plant and another to set aside a foreclosure in pais of the deed of trust at which Mrs. Plant became the purchaser, wherein Mrs Plant made her answer a cross bill, and prayed for a writ of possession of the property. From a decree for defendant, the complainant appeals. Affirmed.

Affirmed.

Augustin Magruder, of Starkville, for appellants.

Appellant respectfully asserts that when her check for $ 3000 was paid to and accepted by Mr. J. F. Plant, all on December 26, 1930 the deed of trust was of no further effect whatsoever.

Section 2152 of the Mississippi Code of 1930 is as follows "Payment of the money secured by any mortgage or deed of trust shall extinguish it, and revest the title in the mortgagor as effectually as if reconveyed."

Jones v. Hyman Mercantile Co., 98 So. 845; Turner v. Givens, 166 So. 367.

The Turner case quotes from 41 C. J. 787, sec. 895, to the effect that a mortgage which has been paid may be kept alive for other purposes, "where such is the intent of the parties, " etc. Conceding for the moment that this court would adhere to the principle there stated, it could have no bearing at all on this case for the obvious reason no such intent on the part of appellant was anywhere shown.

The rightfulness of appellant's position is all the more apparent because of the fact that the $ 3000 payment was from the proceeds of a fire insurance policy with loss payable clause in favor of Mr. J. F. Plant. In other words, Mr. Plant had not merely the security of a deed of trust but had and received the money required to pay off the indebtedness after the McFarlane home had been destroyed by fire. He having exercised his rightful claim to the insurance money, in accordance with the provisions of the deed of trust, his testamentary devisees should not now be heard to say that the deed of trust was not fully paid on December 26, 1930.

Hardin v. Grenada Bank, 180 So. 805.

Appellant objected to the testimony of Mr. Whitaker on the ground that as beneficiary and executor of the J. F. Plant will he was incompetent to testify in establishing a claim against the estate of J. C. McFarlane, deceased.

Section 1529 of the Mississippi Code of 1930 reads in part as follows: "A person shall not testify as a witness to establish his own claim or defense against the estate of a deceased person, which originated during the lifetime of such deceased person, or any claim he has transferred since the death of such decedent."

Whitehead v. Kirk, 61 So. 737, 104 Miss. 776.

Mr. Whitaker's testimony was also objected to on the ground that it came within the condemnation of the statute of frauds.

Sec. 3343, Code of 1930; Wade v. Long, 151 So. 564; Allen v. Smith & Brand, 133 So. 599; Tanner v. Walsh, 183 So. 278.

Appellees in their answer and cross-bill emphasize the fact that the deed of trust contains "adequate" provisions for securing "any and all future advances." Thus they appear to bind themselves to the proposition that the two checks totaling $ 3000 issued after December 26, 1930, by Mr. J. F. Plant constituted "future advances" within the scope of the deed of trust. Such proposition is unavailing.

19 R. C. L. 393, sec. 167.

Assuredly it is not here shown that the appellant, at the time of the execution of this deed of trust on November 10, 1927, had in mind ever so remotely that such a "future advance" as now sought to be established, would be made. Neither did her husband, and neither did Mr. J. F. Plant. A new $ 3000 debt to be created after payment of the original $ 3000 debt was not "in the contemplation of the parties" at that time. And further, it was never in the mind of appellant, who was not even informed thereof until over eight years after such "future advancement" was made.

Most, if not all, of the Mississippi cases dealing with the matter of "future advances" deal with mortgages covering growing crops, as to which advances in cash are customarily made during the crop year to the mortgagor by the mortgagee for labor, supplies and like incidents to the cultivation of a crop, all of which were within the contemplation of the parties at the time of the execution of instrument.

Liberty Mercantile Co. v. Allen, 98 So. 774.

If the amount of an indebtedness under a deed of trust can be changed and altered as here attempted, by an alleged oral agreement to which one of the persons to be charged thereby was in no way a party, under color of a provision for "future advances" expanded at liberty to cover a new loan over three years later, and if the homestead rights of the wife can be thereby swept away and destroyed, then there can be no limit to the iniquities which may arise from the "future advances" clause of a deed of trust.

Jones v. Lamensdorf, 167 So. 624; Herron v. Land, 119 So. 823.

After a mortgage on the homestead, executed by both husband and wife, has been paid, the husband alone by verbal agreement or otherwise cannot revive the mortgage and attach its security to other debts.

29 C. J. 892, sec. 272; Spencer v. Fredenhall, 15 Wis. 666; Davis v. Crawford, 168 So. 261.

Regardless of any other considerations in this case the rights which appellant asserts are fully protected by the various statutes of limitation.

Appellant's position is that she was never in any way bound by the new loan of $ 3000 made after December 26, 1930, but assuming for the purposes of this phase of the argument that the appellant became jointly bound with her husband for the repayment of the advances totaling $ 3000 made by Mr. Plant, that the deed of trust in question was security for the repayment thereof, still whatever rights were then established have long since been barred by the statute of limitations.

Sec. 2290, Code of 1930; Hembree v. Johnson, 80 So. 554; Sections 2313 and 2318, Code of 1930; Musser v. First Natl. Bank of Corinth, 147 So. 783; Proctor v. Hart, 72 Miss. 288, 16 So. 595; First National Bank & Trust Co. v. Landau, 184 So. 618.

Leftwich & Tubb, of Aberdeen, for appellees.

The check for $ 3000 dated December 26, 1930, and that day handed to Mr. Plant did not operate as a payment of the note and deed of trust.

There can be no question of doubt in the unprejudiced mind of the fact that the $ 3000 check did not pay the note secured by this deed of trust. It was never accepted as such payment; it was not applied as a payment on the note or on the trust deed; neither the note nor the trust deed was surrendered. Mr. Plant continued to hold possession of these papers.

Mr. Plant had amassed a fortune and at his death was probably the wealthiest man in Monroe County. After this check of $ 3000 had been delivered to Mr. Plant, December 26, 1930, these papers, the note and the trust deed securing it, continued in the possession of Mr. Plant down to the date of his death. This record discloses that he had a will which was probated in the Chancery Clerk's office of Monroe County, and in accordance with this will Mrs. Plant was devised the dwelling house, its contents, an automobile and $ 75, 000 of bonds, stocks and notes. Mrs. Whitaker was given an estate of $ 60, 000; Mr. Whitaker, $ 15, 000; and $ 5, 000 to each of several brothers and sisters, and sundry real estate was devised to his grandchildren and others, and a large balance to his residuary legatees. At Mr. Plant's death, which occurred February 13, 1934, these papers were a part of his estate and in the division of the estate among the devisees, Mrs. Plant became the owner of this note and trust deed. These papers were delivered to her and at the trial of this cause she produced them, the originals thereof, in court. They do not show any credit or endorsement of any payments except the semi-annual payments of interest.

The mere fact that Mr. Plant and Mrs. Plant, the devisee in his will, remained in possession of these papers and made production of them at the trial raises a very strong legal presumption to the effect that the note secured by this deed of trust had not been paid.

41 C. J. 793, sec. 915.

The burden of proof to show payment was on complainant below, appellant here. We submit that the burden of proof was on the complainant below to show payment of this note secured by the trust deed or mortgage, and when the record is examined from its four corners there is an absolute failure on the part of complainant below to meet this burden.

We submit the intention of these parties as established by the testimony of Mr. Whitaker and by all the other surrounding facts and circumstances is controlling here.

41 C. J. 790, sec. 904; Hartford Fire Ins. Co. v. Buckwalter Lbr. Co., 77 So. 798, 116 Miss. 822; Cade v. Toler, 124 So. 793, 155 Miss. 606.

We submit that under all the evidence in this case there is no substantial conflict and that the evidence overwhelmingly establishes the contract entered into by Mr. McFarlane and Mr. Plant to the effect that the insurance money, all of it, would be used in the repair and erection of the burned residence, and therefore would not be applied as a payment or credit on the note and deed of trust and that this note and deed of trust would continue in full force and effect until its maturity, November 2, 1932.

Mr. Whitaker certainly did not testify to establish his own claim against the estate of a deceased person. He does not have any claim against the J. C. McFarlane estate or against Mrs. McFarlane within the contemplation of the statute.

Cock v Abernathy, 77 Miss. 872; Lann & Carter Hardware Co....