Miller v. Gore
| Decision Date | 21 February 1927 |
| Docket Number | 25747 |
| Citation | 113 So. 203,146 Miss. 557 |
| Court | Mississippi Supreme Court |
| Parties | MILLER, STATE REVENUE AGENT, v. GORE et al. [*] |
1 COUNTIES. State revenue agent may recover excessive sum loaned by board, of supervisors out of county sinking fund (Hemingway's Code, sections 3704, 7056).
Under Laws 1912, chapter 234 (Hemingway's Code, section 3704) attempt to loan by board of supervisors out of county bond-sinking funds in an amount nearly double the assessed value of security given therefor is unauthorized and illegal, and under Code 1906, section 4733 (Hemingway's Code, section 7056), state revenue agent had authority to sue for and recover on behalf of county the sum so loaned.
2. COUNTIES. State revenue agent held entitled to commission on amount paid after action to recover illegal loan by supervisors from county sinking fund (Hemingway's Code, section 7066).
Under Code 1906, section 4748 (Hemingway's Code, section 7066), relative to compensation of state revenue agent, he is entitled to recover twenty per cent, commission on bringing suit to recover moneys illegally loaned by board of supervisors, notwithstanding payment was made into county treasury before determination of action.
3. COUNTIES. Defendants, in suit by state revenue agent to recover illegal loan from sinking fund by board of supervisors, held liable for reasonable attorneys' fees.
Defendants, in action by state revenue agent to recover amount illegally loaned by board of supervisors from county sinking fund, held liable for reasonable attorneys' fees for collection as provided in note executed to county, since, having participated in illegal act and received funds on insufficient security, they are estopped to take advantage of illegal action of supervisors in making attempted loan.
Suggestion of Error Overruled April 18, 1927.
APPEAL from chancery court of Quitman county.
HON. C. L. LOMAX Chancellor.
Suit by W. J. Miller, state revenue agent, against W. E. Gore and others. Decree of dismissal, and complainant appeals. Reversed and decree rendered.
Decree reversed.
Boone, Lowrey & Boone and Lowrey & Lamb, for appellant.
Cutrer & Smith, for appellees.
Reporter's Note: All briefs missing from the record.
Argued orally by P. H. Lowrey, for appellant, and E. W. Smith, for appellees.
W. J. Miller, state revenue agent, filed a bill in the chancery court, for the use and benefit of Quitman county, against W. E. Gore and his wife, Mrs. Bessie G. Gore, M. P. Lowrey, trustee, and the members of the board of supervisors of Quitman county and the sureties on their official bonds, charging, in substance, that in September, 1919, the said board of supervisors had loaned to the defendant W. E. Gore the sum of ten thousand five hundred dollars out of the bond-sinking funds of said county, which said loan was evidenced by a promissory note due four and one-half years after date, bearing interest at the rate of six per cent. per annum, payable annually, and providing for the payment of a reasonable attorney's fee for collection if not paid at maturity, and was secured by a deed of trust on real estate of the assessed value of only five thousand nine hundred dollars; that the said loan was illegal and fraudulent, for the reason that the sum loaned was largely in excess of the amount of such funds that might lawfully be loaned on security of the assessed value named; that the said unauthorized and illegal loan was made by collusion between the said members of the board of supervisors and the said defendant W. E. Gore; that by reason of the violation of the statute then in force regulating such loans the members of the board of supervisors became personally liable for the amount of the loan, and especially for any loss sustained by the county by reason of the illegal disposition of said funds; that on account of the fact that the allowance of the said sum to the defendants W. E. Gore and Bessie G. Gore was unauthorized and illegal in its inception, they became and were liable to at once repay the said sum into the county treasury, regardless of the date of maturity fixed in the alleged loan contract; that by reason of their participation in the said unauthorized and illegal actions of the board of supervisors in making said attempted loan, they could not take advantage thereof, and, consequently, the complainant had the right to sue for said sum and to have the said deed of trust foreclosed and the proceeds applied to such decree as might be rendered against the several defendants. The bill prayed that the said allowance of ten thousand five hundred dollars to the said defendants, W. E. Gore and his wife, Mrs. Bessie G. Gore, be decreed to be an unauthorized and illegal expenditure and allowance and in contravention of the statute; that a decree be entered in favor of the complainant and against all the defendants for the said sum, with accrued interest and attorney's fees as provided in the note; and that the deed of trust executed by the defendants W. E. Gore and wife be foreclosed and the proceeds of the sale applied to payment of such decree.
All the defendants filed a demurrer to the bill of complaint, which was overruled as to the defendants W. E. Gore and Mrs. Bessie G. Gore and sustained as to the members of the board of supervisors. From this order sustaining the demurrer, an appeal was prosecuted to this court, but this appeal was afterwards dismissed. After the demurrer was overruled as to the defendants W. E. Gore and wife, they paid into the county treasury the amount of the said indebtedness, with accrued interest, and thereupon filed an answer to the bill of complaint admitting the correctness of the indebtedness sued for, but averring that the same was not due at the time the suit was filed, for the reason that after the maturity of said note, the board of supervisors, for a valuable consideration, duly made and entered an order extending the due date of the said indebtedness to the 8th day of April, 1925. The answer denied all charges of collusion in the negotiations for the loan, and all illegality in the consummated loan, and charged that the indebtedness sued for had been paid in full before the same was due.
The principal and interest of the indebtedness having been paid into the county treasury, through the board of supervisors, the suit proceeded to a final hearing upon the claim of the complainant, the revenue agent, for the commissions of "twenty per cent. of all amounts collected and paid over by him" allowed him by law, and also a reasonable attorney's fee for collection as provided in the note given to evidence the loan. The court below denied any recovery and dismissed the bill, and from this decree the complainant prosecuted this appeal.
In passing upon the correctness of the action of the court below in denying a recovery of the commissions allowed by law to the revenue agent, it will...
To continue reading
Request your trial
-
Gully, State Tax Collector v. McClellan
...of State v. Green and Miller v. Tucker, cited supra. As to the effect of sixteenth section township funds, the case of Miller v. Gore, 146 Miss. 557, 113 So. 203, is applicable. To begin with, the statute in that case did not provide what the effect of the statute would be should the securi......
-
Gully v. Bew
...were illegally made. They were made in a manner violative of both sections 247 and 5987, Code of 1930. Under the principles laid down in the Gore case the loans became due and payable as soon as were made. The causes of action for their recovery accrued at once to the county. The cause of a......
-
Coahoma County v. Knox
... ... Knox, the appellee ... here, became, upon receipt of the two thousand dollars, ... indebted to Coahoma county in like amount ... Miller ... v. Gore. 146 Miss. 327. 111 So. 451, 146 Miss. 557, 113 So ... 203; Howe v. State, 53 Miss. 57 ... The ... allowance was void ... ...
-
Gully v. Bew
...were illegally made. They were made in a manner violative of both sections 247 and 5987, Code of 1930. Under the principles laid down in the Gore case the loans became due and as soon as they were made. The causes of action for their recovery accrued at once to the county. The cause of acti......