McLendon v. McGee

• Decision Date: 25 November 1940
• Docket Number: 34227
• Citation: 189 Miss. 712,198 So. 725
• Court: Mississippi Supreme Court
• Parties: MCLENDON v. MCGEE

198 So. 725

189 Miss. 712

MCLENDON v. MCGEE

No. 34227

Supreme Court of Mississippi

November 25, 1940

APPEAL from the chancery court of Clarke county, HON. ROBERT, G GILLESPIE, Special Chancellor.

Suit by Charles A. McGee against Robert L. McLen-don, individually and as the trustee in a deed of conveyance to cancel the conveyance. From the decree, the defendant appeals. Affirmed.

Affirmed.

Witherspoon & Witherspoon, of Meridian, for appellant.

The power of appointment in a deed of trust to appoint a substituted trustee must clearly state the event upon the happening of which the power is to become effective; language conferring such power is to be strictly construed substitution and foreclosure attempted under any other circumstances except upon the happening of the event stipulated for in the power is void.

Guion v. Pickett, 42 Miss. 77; Jones v. Salmon, 128 Miss 508, 91 So. 199; Powers v. Interstate Trust & Banking Co., 163 Miss. 30, 139 So. 318; West v. Union Naval Stores Co., 117 Miss. 155, 77 So. 961; Bonner v. Leslie, 61 Miss. 392; McNeil v. Lee, 79 Miss. 455, 30 So. 821; Clarke v. Wilson, 53 Miss. 128; Ready v. Hamm, 46 Miss. 422; 2 Perry on Trusts (4 Ed.), sec. 602(g).

One owning an equitable interest in land is an indispensable party to a suit in equity to cancel the deed by which he acquired title.

Merwin on Equity, p. 456; Mcllvoy v. Aslop, 45 Miss. 365; Barry v. Barry, 64 Miss. 709; Harding v. Cobb, 47 Miss. 599; Harlow v. Mister, 64 Miss. 25; Foster v. Jones (Miss.), 17 So. 893; Lewis v. Jefferson, 173 Miss. 657, 161 So. 699; May v. Sullivan, 37 Miss. 541; Moses v. Kraus, 90 Miss. 618, 44 So. 169; Wilson v. Wilson, 166 Miss. 369, 146 So. 855; 15 Encyc. of Pleading and Practice 611, 612.

The questions raised above could be considered here even though not raised in the court below.

15 Encyc. of Pleading and Practice 688, 689, and authorities there cited.

Chapter 250 of the Mississippi Laws of 1934 is a twelve months statute of limitations on the right and remedy to bring a suit to question the title to real estate by reason of the failure to insert in any notice of sale under a deed of trust the name of the owner, mortgagor or assumptor of the mortgage indebtedness. One main trouble about applying this statute of limitations to this case is that appellants did not bring the suit; they are defending a suit brought by the appellees. Appellants are using the defect in the foreclosure of the Bank's deed of trust as a defense. No defense is ever barred by a statute of limitations; a defense holds good as long as the complainant waits to make his attack no matter how long that may be.

37 C. J. 803 and authorities cited under note 55.

Counsel say that it must be kept in mind that this is a suit to cancel a cloud on title and that it is necessary to join as defendants in such cases only those parties whose claims the complainant wishes to cancel. This argument is that appellee might wish to compel McLendon's "claim" and not cancel the Dunlap Dry Goods Company's "claim, " and that it had the right to cancel one and let the other go. The trouble about this argument is that McLendon and the Dunlap Dry Goods Company claim under the same deed and the court below cancelled the entire deed; not just McLendon's interest in it, and the court ordered the clerk to make a notation on the margin of the record showing that it was cancelled.

All persons whose claims constitute a single cloud must be joined in a suit to cancel it.

Griffith's Miss. Chancery Practice, secs. 101, 103, 115, and Chap. V; Wheeler v. Biggs (Miss.), 12 So. 596; May et ux. v. Sullivan, 37 Miss. 541; Mundy et al. v. Calvert, 40 Miss. 181; Martin v. Williams, 42 Miss. 210; Champlin v. McLeod, 53 Miss. 484; Cannon v. Barry, 59. Miss. 289; Hunt v. Booth, Freeman's Ch. 215; Bland v. Bland, 105 Miss. 484, 62 So. 641; Lemmon et al. v. Dunn et al., 60 Miss. 210; Taylor v. Webb, 54 Miss. 36; Harlow v. Mister, 64 Miss. 25; Patty v. Williams, 71 Miss. 837, 15 So. 43; Moses et al. v. Kraus, 90 Miss. 618, 44 So. 162; Smith v. Denny & Co., 90 Miss. 434; Beason v. Coleman, 92 Miss. 622, 46 So. 49; Terry v. Unknown Heirs of Gibson, 108 Miss. 749, 67 So. 209; Lewis v. Jefferson, 173 Miss. 567; Gates v. Naval Stores Co., 92 Miss. 227, 45 So. 979; Clayton v. Merrett, 52 Miss. 353; Wilson v. Wilson, 166 Miss. 369, 146 So. 855.

The question in this case is whether this deed could be "cancelled and held for naught" in the absence of the Dunlap Dry Goods Company. It would appear that as long as our courts adhere to what we believe to be the most ancient, fundamental, necessary and most widely accepted principle of human justice of all those contained in the law that it could not. If there is any principle of the law which stands upon an equality with that which says that no man may be tried or condemned in his absence we do not know of it. This was the rule when the Civil War was fought and when the federal troops burned some of the courthouses in Mississippi as shown by the holding of this court in Martin v. Williams, supra. It is the rule today and will be the rule as long as we live in a country where any of the fundamental principles of justice and rights are recognized.

Griffith's Miss. Chan. Practice, secs. 48, 115; Martin v. Williams, 42 Miss. 210.

Chas. R. Shannon, of Laurel, and Beverly C. Adams, E. F. Steiner, and T. H. Hedgepeth, all of New Orleans, La., for appellee.

It was not necessary for appellant to have been named in the notice of trustee's sale in connection with the foreclosure of the deed of trust of Tom Johnson in favor of appellee, Federal Land Bank.

Sec. 2167, Code of 1930; Wilkinson v. Fed. Land Bank, 168 Miss. 645, 151 So. 761; Castleman v. Canal Bank and Trust Co., 171 Miss. 291, 156 So. 648; Melchor v. Casey, 173 Miss. 67, 161 So. 692; 17 C. J. S. 401, sec. 52.

If it is held that appellant should have been named in notice, the defect is cured by Chap. 250 of the Mississippi Laws of 1934 providing that suits challenging validity of foreclosures on this ground must be filed in one year.

Chap. 250, Laws 1934.

New questions will not be considered when raised for first time on appeal.

4 C. J. S. p. 430, sec. 228, p. 438, sec. 233 (a), p. 465, sec. 241 (a); Estes v. Memphis & Charleston Ry. Co., 119 So. 199, 152 Miss. 814; Whittington v. Cottam Co., 130 So. 745, 158 Miss. 847, 76 A. L. R. 332; Williams v. Butts, 87 So. 145, 124 Miss. 661; Mitchell v. Finley, 137 So. 330, 161 Miss. 527; Equitable Life Assurance Society v. Slaughter, 172 So. 300, 178 Miss. 366; Noxubee County v. Long, 106 So. 84, 141 Miss. 72; Williams v. Lumpkin, 152 So. 842, 169 Miss. 146; Talbert v. Melton, 9 S. & M. 9; Adams v. Clarksdale, 48 So. 242, 95 Miss. 88; Miss. Valley Trust Co. v. Brewer, 128 So. 83, 157 Miss. 890; Hutson v. King, 80 So. 779, 119 Miss. 347; City of Biloxi v. Trustees of Miss. Annual Conference Endowment Fund, 173 So. 797, 179 Miss. 47; Miss. Power Co. v. May, 161 So. 755, 173 Miss. 580; Adams v. Sup'rs of Union County, 170 So. 648, 177 Miss. 403; Rohrbacher v. Jackson, 51 Miss. 735.

For general rule as applied to the questioning of validity of substitution of trustee for first time on appeal, see: 4 C. J. S. 447, sec. 233(e); Watson v. McDonald, 41 Miss. 376.

Keeping in mind that this is a suit to cancel a cloud on title and that it is necessary to join as defendants in such cases only those parties whose claim the complainant wishes to cancel, we submit that cases of misjoinder and non-joinder of parties present the strongest instances in which the general rule should be applied.

2 R. C. L. 85, sec. 61; Raynor v. Scandinavian-American Bank, 122 Wash. 150, 210 P. 499; Wright v. Scotton, 13 Del. Ch. 402, 121 A. 69, 31 A. L. R. 1162; So. Surety Co. v. Dardanelle Road Improvement Dist., 169 Ark. 755, 276 S.W. 1014, 42 A. L. R. 299; Hatten v. Interocean Oil Co., 182 Okla. 465, 78 P.2d 392; Green v. Green (N. C.), 9 S.E.2d 413; Morris v. Smith, 288 P. 1068, 76 Utah 162; First Presbyterian Church v. Fuller (Fla.), 183 So. 726; Simmons v. Parker, 1 Miss. Dec. 456; Adams v. Clarksdale, 48 So. 242, 95 Miss. 88; Planters Oil Mill & Mfg. Co. v. Falls (Miss.), 29 So. 786; Rothrock Const. Co. v. Port Gibson Mfg. Co., 32 So. 116, 80 Miss. 517, rehearing denied, 32 So. 484, 80 Miss. 517; Delta & Pine Land Co. v. Adams, 48 So. 190, 93 Miss. 340; Kimbrough v. Davies, 61 So. 697, 104 Miss. 722; 4 C. J. S. 442, sec. 333(a).

The power authorizing substitution was sufficiently broad, and the conditions thereof were fully met.

Graham v. Fitts, 53 Miss. 307; Enochs v. Miller, 60 Miss. 19; McCaughn v. Young, 85 Miss. 277, 37 So. 839; Jones v. Frank, 123 Miss. 280, 85 So. 310; Melchor v. Casey, 173 Miss. 67, 161 So. 692; Thompson v. Wynne, 127 Miss. 733, 90 So. 482; King v. Jones, 121 Miss. 319, 83 So. 531; 18 C. J. S., Corporations, secs. 3 and 8; 15 C. J. 51, sec. 3.

It was not necessary to name as defendants any parties other than appellant.

Griffith's Chan. Practice, sec. 110, 115; Bell v. Gordon, 55 Miss. 45; 41 C. J. 890, sec. 1113; 51 C. J. 207, sec. 138; 65 C. J. 526, sec. 272; 3 Jones on Mortgages (8 Ed.), sec. 2122.

Argued orally by S. A. Witherspoon, for appellant, and by Beverly C. Adaam, for appellee.

OPINION

McGehee, J.

This suit was begun by appellee in the Chancery Court of Clarke County by bill of complaint against the appellant R. L. McLendon, individually and as the trustee in a deed of conveyance of certain real estate made to him by a local merchant for the benefit of his mercantile creditors among whom was the Dunlap Dry Goods Company of Mobile, Alabama, and wherein the complainant sought to cancel the conveyance so held by said trustee, together with certain subsequent conveyances made by all of the...