Mulholland v. Peoples Bank of Biloxi
| Decision Date | 27 November 1939 |
| Docket Number | 34007 |
| Citation | 187 Miss. 608,192 So. 308 |
| Court | Mississippi Supreme Court |
| Parties | MULHOLLAND v. PEOPLES BANK OF BILOXI et al |
Suggestion Of Error Overruled February 26, 1940.
APPEAL from the chancery court of Harrison county HON. D. M RUSSELL, Chancellor.
Action by P. H. Mulholland against the Peoples Bank of Biloxi Mississippi, and others, on a purchase-money note and to enforce a vendor's lien. From a decree dismissing the bill of complaint, the plaintiff appeals. On motion filed by certain of the appellees to dismiss the appeal. Motion overruled, on merits. Affirmed per curiam, Jan. 29, 1940.
Motion overruled.
J. D Stennis, Jr., of Biloxi, for appellant.
White & Morse, of Gulfport, for appellees.
This is a motion filed by the appellees to dismiss the appeal herein on the ground that the decree rendered on April 2, 1938, dismissing the bill of complaint as to them and taking the cause under advisement as to other defendants in the court below, was final; and it appears that the appeal bond was not given until October 7, 1938, more than six months from the date of such decree.
The appellant had sued to enforce the collection of an indebtedness evidenced by a series of promissory notes executed by one Ab Jackson for the purchase price of certain land, one of which was owned by appellant, and which had been assumed by Mrs. Agnes Cronovich to whom Jackson had conveyed the land. The appellee, Peoples Bank of Biloxi, had acquired the other unpaid notes of the series. Prior to the filing of the suit, it appears that the bank acquired title to the land under a tax sale, and had also taken a release or quitclaim from Mrs. Cronovich of her interest therein. The appellant sought a decree against Jackson and Mrs. Cronovich for the amount of the note held by him, and also a decree establishing a resulting trust against the bank on the theory, as we understand it from the briefs on the motion here to dismiss the appeal, that the bank acquired the tax title in trust for all holders of the notes of said series, under some kind of an alleged agreement in that behalf, and had acquired the release or quitclaim from Mrs. Cronovich covering her interest in the land in consideration of an agreement that she was to be released from any and all liability on account of having assumed the payment of the outstanding notes of the series, including the one held by appellant.
We also understand from the briefs on this motion, without reference to the record on appeal, that the bill of complaint sought to enforce a vendor's lien in favor of the appellant against the land for the payment of that part of the purchase money indebtedness held by him; and to obtain a decree against both Mrs. Cronovich and the bank for the amount due appellant on the note, on the ground that she had assumed its payment as grantee in a deed and that the bank had assumed its payment by agreement, and as a matter of equity, by virtue of the circumstances under which the bank acquired title to the land. In other words, that the bank had become liable for the payment of the note on the theory of "a resulting or constructive trust" under which it is alleged to have acquired the title.
The parties defendant to the bill of complainant were Jackson, a non-resident, Mrs. Cronovich, who failed to appear and make defense, the appellee, Peoples Bank of Biloxi, and O. G Swetman, agent of the bank. On April 2, 1938, which was the last day of the regular term of the Court, the chancellor rendered a decree which recited that the case had been heard on the pleadings, and on oral documentary evidence, and that the court was of the opinion and found "that the complainant is not entitled to recover as to the defendants, Peoples Bank of Biloxi and O. G. Swetman, and that the said bill and amended bills should be dismissed as to said defendants." It was accordingly so ordered, and the complainant was taxed with the cost, for which execution was ordered to be issued. On that same day another decree was entered taking the case "under advisement for the...
To continue reading
Request your trial
- Virginia-Carolina Chemical Co. v. Jefferson
-
Eubanks v. Aero Mayflower Transit Co., 43539
...Paving Co. v. State Highway Commission, 197 Miss. 751, 766, 20 So.2d 834, 21 So.2d 646, 22 So.2d 497 (1945); Mulholland v. Peoples Bank of Biloxi, 187 Miss. 608, 192 So. 308 (1939); Federal Land Bank v. Kimpriel, 174 Miss. 153, 163 So. 501 (1935); Dickerson v. Western Union Telegraph Co., 1......
- Randall v. Skinner
-
Bradley v. Holmes, 42017
...An appeal will not lie unless there has been a final disposition of the case as to all of the parties. Mulholland v. Peoples Bank of Biloxi, 187 Miss. 608, 192 So. 308, 310 (1939), reached the same conclusion under similar circumstances. It was said that 'appeals should not be taken by Fede......