Middleton v. Georgetown Mercantile Co.

• Decision Date: 11 March 1918
• Docket Number: 20002
• Citation: 117 Miss. 134,77 So. 956
• Court: Mississippi Supreme Court
• Parties: MIDDLETON v. GEORGETOWN MERCANTILE COMPANY

77 So. 956

117 Miss. 134

MIDDLETON v. GEORGETOWN MERCANTILE COMPANY

No. 20002

Supreme Court of Mississippi

March 11, 1918

Division A

APPEAL from the circuit court of Copiah county, HON. D. M. MILLER Judge.

Unlawful entry and detainer, by the Georgetown Mercantile Company against R. B. Middleton and others. From a judgment on peremptory instruction for plaintiff, defendant appeals.

The facts are fully stated in the opinion of the court.

Judgment affirmed.

H. J Wilson, for appellant.

Replying to the brief filed by counsel for appellee in this cause we call the attention of the court to the fact that the only serious contention made by appellee is that the appellants cannot question the title or right of possession of appellee to the land in controversy. They state that the only party competent to raise that question is the state through its duly authorized officers.

The rule invoked by counsel does not apply in this case. Appellants are not asserting title or rights in the land. They simply deny and prove that appellee has no title or right in the land. If appellee acquired no title through the foreclosure sale, then it has no right to possession even against a stranger or trespasser. In other words, appellee has no standing in a court of law and justice. It undertook to acquire title to farm lands in violation of the provisions of chapter 162 of the Laws of 1912. Both the letter and spirit of the statute is opposed to the acquisition of farm lands by corporations, unless it becomes necessary to acquire the same in the collection of a debt.

The plain, competent and overwhelming proof furnished by the defendant was to the effect that Middleton was not indebted to the Mercantile company at the time of the foreclosure sale. This question is the crux in this case. The question was fairly disputed by the evidence, and should have been submitted to the jury for determination. The refusal of the court to submit the question to the jury is reversible error.

The authorities cited by counsel for appellee are not at all in point in this case, because appellants are not asserting any right in themselves, but are denying that appellee had any right or standing in court. If appellee acquired no title at the foreclosure sale under the deed of trust to the Mortgage Company, then it had no right to possession of the land as against appellants or any other person. Appellee cannot come into a court of law or justice and through its processes recover any benefits through a transaction that is prohibited by our statutes.

I submit, therefore, the case should be reversed and remanded for trial.

Green & Green and D. Mahaffy, for appellee.

Appellee filed its brief herein before appellant's brief was filed, and it is to be noted that the positions taken by appellant are, with deference, not answered by the brief of appellee. Their reply brief received since this was written and, with deference, it is not an answer.

In the first place, the land, while it was agricultural land, was not acquired by the Georgetown Mercantile Company for agricultural purposes. The statute does not forbid the acquisition of agricultural land, but only the acquisition of land for agricultural purposes.

The Georgetown Mercantile Company either had to buy the land or lose its debt, and it bought the land at the deed of trust sale and paid the mortgage debt due under the F. H. Carlysle, trustee, deed of trust, amounting to about twelve hundred dollars; and having a second mortgage, even though litigated, and being the owners of a part of the first mortgage indebtedness, even though litigated, the company had the right, under the statute to buy the land to protect its debt and for the collection of its debt, and which was secured by a second mortgage and, in part, by the first.

Counsel concedes that this question of appellee's title could only be raised by the state under chapter 162 of the Laws of 1912, if appellee had obtained possession. There is nothing in the chapter which deals with possession, the chapter provides that no corporation shall acquire title to lands for agricultural purposes. The title was acquired at the deed of trust sale, independent of any question of actual possession, and the legal possession followed the acquisition of title and the withholding of possession is an unlawful act of the appellants, and in denial of the right of possession vested in appellee.

The title has been acquired, and appellants are seeking to defeat the title so acquired at the trustee's sale which was vested by the deed of trust sale of the trustee.

The question of the extent of the indebtedness to the appellee by Middleton was not involved and the appellee as shown by the affidavits on motion to strike the bill of exceptions introduced in evidence the second deed of trust and the notes and appellant's brief admits that the deed of trust was introduced in evidence. Thus appellee had the note of appellant secured by second mortgage and the note of appellant secured by first mortgage, and irrespective of the amount due on the notes held by appellee secured by first mortgage, the principal amount secured by first mortgage was due and unpaid and sale was made under all the indebtedness secured by the first mortgage. After that sale was made and after appellee had paid off, as purchase money at that sale, the whole amount of the first mortgage, it would be droll indeed if he could not make effective the sale and should lose the land and its purchase money.

The evidence of Mr. Shoemaker showed that independent of the books, the indebtedness by appellant to appellee was about two thousand dollars and this evidence was in addition to the proof by the notes themselves, secured by second deed of trust which are omitted from the record.

Counsel refers to what the books of appellant showed, but there are no such books in the record and the case could only be tried by the evidence which is in the record.

We took it for granted in our original brief that it could not be doubted that where a statute provided a special remedy for the enforcement of a liability, as is done by sections 5 and 6, chapter 162 of the Laws of 1912, that this remedy is exclusive. Miazza v. State, 66 Miss. 420.

Nowhere in chapter 162 is there a forfeiture of the land acquired in violation thereof, to the grantor; but, on the contrary, sections 5 and 6 both provide for the special remedy of a forfeiture of the franchises of the corporation, for violating the law, and the administration of its assets among creditors and stockholders, and in such administration is included the land which is acquired in violation of the statute.

OPINION

HOLDEN, J.

The appellee, Georgetown Mercantile Company, a corporation, instituted an unlawful entry and detainer suit against R. B. Middleton, appellant, to recover possession of a tract of farm land which was occupied, and formerly owned, by appellant. The appellee, Georgetown Mercantile Company acquired title to the land by purchase at a foreclosure sale under a deed of trust executed by appellant to F. H. Carlysle for the benefit of D. Nederlansch-Amerekaansche Land Maataschappy. At the time of the purchase of the land by appellee it was in the possession of appellant and was farm land used for agricultural purposes. The appellee was the owner of the two unpaid notes executed by appellant and secured by said deed of trust upon said land. Appellant had also subsequently executed a deed of trust to the appellee upon the same land to secure a certain indebtedness which was unpaid. The said prior deed of trust to Carlysle, trustee, also secured two unpaid notes due to the beneficiary, D. Nederlandsch-Amerekaansche Land Maataschappy, and upon which the foreclosure sale was made.

The appellant, Middleton, defended in the lower court upon two grounds: First, that the plaintiff in the court below should not recover possession of the land because the appellee was a corporation and had acquired the land for agricultural purposes in violation of chapter 162, Act of 1912; second that the appellant was not indebted to the appellee in any sum, for the reason that appellant had paid appellee all that was due it under the deed of trust held by appellee, and also had paid the two notes held by appellee, and had paid appellee the amount of the other two notes, all of which were secured by the prior deed of trust in which Carlysle was trustee, and that therefore the appellee corporation did not come within the exception of the act providing that corporations may acquire lands for agricultural purposes by deed for collection of debts due the corporation. After the evidence had been introduced, or offered, by the defendant below tending to sustain his contention, the court...