Neno v. Crosby

• Decision Date: 28 October 1935
• Docket Number: 31859
• Citation: 174 Miss. 28,163 So. 678
• Court: Mississippi Supreme Court
• Parties: NENO v. CROSBY et al

163 So. 678

174 Miss. 28

NENO v. CROSBY et al

No. 31859

Supreme Court of Mississippi

October 28, 1935

Division B

1. APPEAL AND ERROR.

Finding of chancellor on conflicting evidence would not be disturbed in absence of reversible error in record.

2 MORTGAGES.

Finding that mortgagor's wife did not sign or give mortgagor authority to sign her name to deed of trust and did not know that mortgagor signed her name to deed, which embraced land belonging to wife, held to sustain judgment in foreclosure suit releasing land belonging to wife from foreclosure order.

HON. D M. RUSSELL, Chancellor.

APPEAL from the chancery court of Wayne county HON. D. M. RUSSELL Chancellor.

Bill to foreclose deed of trust by J. G. Neno, receiver of the First National Bank of Waynesboro, against A. L. Crosby and others. From the judgment, the complainant appeals. Affirmed.

Affirmed.

W. M. Hutto, of Waynesboro, for appellant.

It is held that where mortgage is taken in renewal of a prior mortgage on the same property, there being merely a change in the form of the indebtedness, although the old security is cancelled of record on the supposition that the new security is good, if it turns out that it is not valid, and rights of third parties have not intervened, without notice, the creditor is in equity entitled to the benefits of his original security, and is entitled to have the original security foreclosed by the court in order to satisfy the indebtedness.

Sledge v. Obenchain, 58 Miss. 670; Thomson v. Hester, 55 Miss. 656; Schumpert v. Dillard, 55 Miss. 348.

Where two trust deeds of different debts embracing the same property are made to the same mortgagee, the second will not avoid the first and the mortgagee is entitled to have the security described in the first mortgage sold to satisfy the indebtedness due.

Christian v. Green, 45 So. 425; Whitaker v. Dick, 5 How. 296.

It was held by this court that a mere change in the form of evidence of indebtedness secured by a deed in trust, as the giving of a new note, will not operate as a payment of the debt of the original debt or discharge the original security, unless it is clearly apparent that the intent of the parties was to release the original security.

Gleason v. Wright, 53 Miss. 247.

The renewal mortgage executed by A. L. Crosby alone does not constitute a new promise to pay. It is merely accumulated security to keep alive the mortgage previously given by him and his wife and specifically pointed to the original mortgage executed by Crosby and his wife.

Herron v. Land, 119 So. 823; Chase National Bank v. Chapman, 160 So. 286.

Frank Clark, of Waynesboro, for appellees.

The appellant suggests as an error the action of the court when it released the land of Mrs. Crosby named as security in the deed of trust in question. The appellees are of the opinion that the court below was not in error, the testimony of A. L. Crosby, when called as an adverse witness by appellant and when called as a witness for appellees, shows conclusively that Mr. Crosby signed his wife's name to the documents in question.

The appellant depends upon the case of Chase National Bank v. Chapman, 160 So. 286. This case and the Chapman case are not similar at all. In the Chapman case, the testimony shows that the husband attended to all of the business of his wife and that the money borrowed was used to carry on the business of the wife. In this case the testimony shows just to the contrary, the money borrowed and the note executed was for the use of third parties. The testimony is not in conflict on this point. Mrs. Crosby and nothing connected with her business and farm received one penny of the money in question. Her business did not necessitate the borrowing of money. In the Chapman case, Mrs. Chapman knew her husband borrowed the money and knew what it was used for and knew it was used to carry on her business. Therefore there is no inference in this record that the husband had implied power to mortgage his wife's property.

OPINION

Ethridge, P. J.

On or about October 9, 1930, A. L. Crosby executed a deed of trust to the First National Bank of...