Myles v. Cox

• Citation: 217 So.2d 31
• Decision Date: 23 December 1968
• Docket Number: No. 45109,45109
• Parties: Anderson MYLES and Armella Myles, Appellants/Complainants, v. Homer L. COX, Otha Mabry, Substitute Trustee, and Nelson Cauthen, Defendants/Appellees.
• Court: United States State Supreme Court of Mississippi

Page 31

217 So.2d 31

Anderson MYLES and Armella Myles, Appellants/Complainants, v. Homer L. COX, Otha Mabry, Substitute Trustee, and Nelson

Cauthen, Defendants/Appellees.

No. 45109.

Supreme Court of Mississippi.

Dec. 23, 1968.

McClendon & McClendon, Jackson, for appellants.

Nelson Cauthen, Canton, Crisler, Crisler & Nichols, Jackson, for appellees.

PATTERSON, Justice:

This is an appeal from the Chancery Court of Madison County wherein appellants, Anderson Myles and Armella Myles, filed a bill of complaint against appellees, Homer L. Cox, Otha Mabry, and Nelson Cauthen. They sought confirmation of their title in some eight and one-half acres of land; to remove cloud to their title by cancellation of a substitute trustee's deed; to obtain an accounting of the amount they owed on a promissory note originally secured by a deed of trust; to determine what parties were entitled to receive these amounts; and for a reasonable time in which to pay such money to the appropriate parties. After hearing, the chancellor entered a final decree dismissing the appellants' bill of complaint, adjudging that Homer L. Cox was the lawful owner of the property in question, ordering the appellants to surrender possession of such property, and granting their prayer for appeal to this Court.

In 1964 Anderson Myles owed debts of a substantial nature to Forrest Drilling Co., Termplan, Inc., and to Jackson Investment Co. These debts were secured by deeds of trust and legal proceedings had been filed to foreclose these deeds of trust in order to collect these debts. In an attempt to prevent the sale of his property, Myles contacted Nelson Cauthen, an attorney, on August 10, 1964. Attorney Cauthen had previously been employed by other members of the appellants' family and had represented the appellants personally on various occasions since 1950. Myles paid Cauthen $164 and asked that he proceed in his behalf. Myles testified that on September 10, 1964, when he returned to his attorney's office, that the suggestion was made to him that '* * * he would pay all of my bills-consolidate all my bills in one note, and I would pay him $50 per month.'

An arrangement was worked out so that Cauthen was to advance appellants the amount necessary to pay their debts. In return they executed a promissory note for the amount of the debts plus an attorney's fee of $300. This note was secured by a deed of trust on eight and one-half acres of their land and on their home. Repayment was set at $50 per month until the entire balance of $3,145 plus six percent interest per annum was paid. Cauthen testified that since it was impossible to determine the exact amount necessary to pay off appellants' debts, they agreed that any reductions or discounts obtained in the payment of these debts would likewise reduce the amount of the promissory note. However, Myles stated that he understood the $164 advanced by him to his attorney was to serve as the first three monthly payments and that any reductions in the amounts originally owed by appellants would likewise be credited as monthly payments.

After the note and deed of trust were executed, Cauthen settled the various debts of the appellants and in doing so expended approximately $2,800. It appears that he gave the appellants credit for the $164 advanced. On November 11, 1964, Cauthen wrote the Myleses indicating that they should begin making regular payments to extinguish the debt. Mrs. Myles answered this letter by return mail on November 16, 1964, stating that her husband would come by to see about the matter the following Saturday. Cauthen denied that Myles ever came by his office. Myles testified, however, that he did visit his attorney, but only talked with him briefly since he was busy with another client. He further stated that he had expressed his belief that the $164 and the reductions in debts would serve as monthly payments, and further that Mr. Cauthen agreed to this arrangement. His attorney specifically denied such an agreement. Monthly payments were thereafter made in June, July, August, and November, 1965.

Appellant testified that he did not see or hear from his attorney again until April 28, 1966. Cauthen on the other hand testified that he sent periodic notices to his client requesting monthly payments on the note. On April 28, 1966, Cauthen wrote Myles stating that nineteen payments should have been made as of that date and only four had been tendered. In view of this fact he would find it necessary to foreclose unless a payment of $500 was made immediately. On May 3, 1966, Myles wrote Cauthen to the effect that he would like to bring his debt current and would pay $50 a week thereafter in order to do so. A $50 check was enclosed with this letter. On May 27, 1966, Cauthen returned this payment and advised that since the requested $500 had not been paid, foreclosure proceedings would be instituted. Myles denied that the letter introduced by Cauthen was the letter that he received, but admitted that he did receive a similar letter. Myles then testified that in response he wrote Cauthen requesting an accounting of the amount he owed and that he would pay such amount on July 1, 1966. Cauthen disavowed having received such a letter.

Thereafter preparations were made for a foreclosure sale on June 27, 1966. Publication was made in the local paper as required by law and a proper notice thereof was attached in the appropriate place at the county courthouse. A substitute trustee was necessary since the original trustee had died. Cauthen arranged this substitution. Cauthen testified that Mrs. Myles visited his office at about that time and requested the date on which the sale was to be held. He answered such request by telling her to get a newspaper and find out. Cauthen admitted that he got in touch with Mr. Cox, appellee, a friend and land buyer, to inform him of the sale and the amount owed on the debt. The sale was held as scheduled and Cox bought the property for $3,218, the amount of the debt. The Myleses did not attend the sale.

Thereafter, in August 1966 appellants filed their bill of complaint. They alleged, among other things, that the sale price was grossly inadequate and that this inadequacy when considered with other circumstances surrounding the sale was sufficient to set the foreclosure sale aside; that because of the fiduciary relationship existing between the complainants and the defendant Cauthen, they should have been entitled to an accounting prior to the foreclosure sale and were entitled to a reasonable time within which to pay any sum which might have been in arrears.

The case was tried and the chancellor made the following finding of fact: That only four monthly payments were made by Anderson Myles; that when Cauthen notified Myles that he intended to foreclose, he gave the balance due as $3,136.13; that testimony had placed the value of the property in question from a high of $16,000 to a low of $3,400. The court found the value of the property to be between $6,500 and $8,000; that although the sale price of $3,218 was low, it was not so inadequate '* * * as to shock the conscience of the court.' The court was of the...