Nelson v. Coney, 39679

• Citation: 80 So.2d 476,224 Miss. 485
• Decision Date: 23 May 1955
• Docket Number: No. 39679,39679
• Parties: William B. NELSON v. M. M. CONEY et ux.
• Court: Mississippi Supreme Court

Page 476

80 So.2d 476

224 Miss. 485

William B. NELSON v. M. M. CONEY et ux.

No. 39679.

Supreme Court of Mississippi.

May 23, 1955.

T. Price Dale, Hattiesburg, for appellant.

Price, Phillips, & McLendon, McComb, for appellees.

ROBERDS, Presiding Justice.

On September 6, 1932, M. M. Coney executed to William B. Nelson an instrument in the form of a warranty deed, purporting to convey to grantee a tract of 340 acres of land located in Pike County, Mississippi.

Coney and his wife filed the bill in this cause, asserting that, as between them and Nelson, it was known and understood that the instrument, while in form a deed, was in fact and reality executed as security for repayment to Nelson of money he had advanced, and would in the future advance, to Coney to enable him to pay The Federal Land Bank of New Orleans, which held a trust deed on the property, and also to pay the taxes on the land, and thereby prevent foreclosure under the trust deed and sale of the land for nonpayment of taxes. The bill further asserted that Nelson had been repaid all money owing to him by Coney but that he refused to reconvey the land and was claiming to be the owner thereof. The chancellor found that the evidence sustained the foregoing charges and ordered Nelson to cancel the deed and reconvey the land to Coney, failing in which the decree empowered and directed the chancery clerk to execute a deed to Coney.

Nelson strongly urges here that the finding of the chancellor on these questions are not sustained by the evidence. Many witnesses testified in the case. We have examined the testimony carefully. It was sharply conflicting. It presented issue of fact for decision by the chancellor. Without detailing it, we think it amply justified the finding of the chancellor.

Nelson says Coney is estopped to assert he is the owner of the land and that the instrument was intended as, and was in fact, security for payment of an indebtedness because of these circumstances: In 1934 Lampton-Reid Company, a corporation, had a deed of trust on the land second to that of the Federal Land Bank of New Orleans. M. M. Coney and his wife Emma and William B. Nelson filed a bill in the Chancery Court of Pike County, Mississippi, alleging that Lampton-Reid Company was about to foreclose its second trust deed in violation of certain understandings that company had had with the complainants, and in violation of the rights of complainants under Chap. 247, Miss. Laws of 1934, known as the Moratorium Act. The bill asked that an equitable arrangement for making payments to Lampton-Reid and also for payment of the taxes be worked out and that Lampton-Reid be enjoined from foreclosing upon the property during the period covered by the arrangement. The chancellor granted the prayer of the...