Powell v. Sowell

• Decision Date: 08 October 1962
• Docket Number: No. 42380,42380
• Citation: 245 Miss. 53,145 So.2d 168
• Parties: H. D. POWELL and Mrs. H. D. Powell v. Larry W. SOWELL, Substituted Trustee.
• Court: Mississippi Supreme Court

Page 168

145 So.2d 168

245 Miss. 53

H. D. POWELL and Mrs. H. D. Powell v. Larry W. SOWELL, Substituted Trustee.

No. 42380.

Supreme Court of Mississippi.

Oct. 8, 1962.

James A. White, Durant, for appellants.

Parham H. Williams, Jr., Lexington, for appellee.

LEE, Presiding Justice.

A replevin action was instituted in the circuit court by Larry W. Sowell, substituted trustee, against Mr. and Mrs. H. D. Powell. The final judgment ordered the defendants and their sureties to restore to the plaintiff the automobile in controversy or pay to him the amount of $754.63, found by the court as the plaintiff's interest therein. From the judgment entered, the defendant appealed.

The declaration alleged, and the evidence showed, the following: Clark Finance Co., Inc. was a licensed broker, operating under the trade name of Tower Loan Brokers of Canton, Mississippi, and Economy Finance Corporation of Jackson, Mississippi, was a licensed lender.

Mr. and Mrs. H. D. Powell, by their contract in writing, employed and appointed the Tower Loan people to negotiate for and obtain them a loan from Economy to be dated February 24, 1960, and payable in eighteen monthly installments of $56 each. A detailed breakdown of the proposed disbursement of the proceeds of the loan showed the lender's discount and gross advance, the cost of accident, health and life insurance premiums, recording fee, cash to customer and brokerage fee, interest and service charges, the amount designated by the borrowers to pay a previous loan, and the amount of cash to be paid into the hands of the borrowers. The contract bound the borrowers to pay the broker, for its services, the amount shown in the detailed plan of disbursement, including its guaranty, etc. in connection with the note that they would sign in favor of such lender.

The note to Economy Finance, showing Tower Loan as broker, contained the same details of disbursement as set out in the brokerage contract. Then followed the promise to pay in accordance with the schedule and amounts and purposes as therein above-stated and referred to, with the obligation to pay an attorney's fee of 15% of the principal and interest then unpaid if not paid promptly, and the same was placed in the hands of an attorney. This instrument was signed by the Powells.

The deed of trust by the Powells to Tower Loan contained the same details for the identification of the loan and the disbursement of its proceeds as set out in the note. It recited that the named broker, by its unconditional guarantee of the makers' note, as therein mentioned, had secured the loan, as therein described; and that the borrowers were anxious to secure the broker from any loss by reason of its guaranty. Consequently, for the consideration therein named, the Powells conveyed and warranted to D. C. McCool, Trustee, the title to the automobile involved in this litigation. If, by reason of its guaranty, the broker should have demand made upon it because of the default or failure of the Powells to pay when and as the indebtedness became due, then the trustee was authorized to sell the property, etc. As stated, this instrument was signed and acknowledged by the Powells, and was duly recorded.

Copies of the brokerage contract, the note, and the deed of trust were attached to the declaration.

The evidence showed that the loan was made and the proceeds were disbursed in accordance with the contract; that the Powells defaulted when a balance of $656.20 remained due; that the Tower Loan people made demand upon the Powells to pay, but that they failed to do so; that demand was then made upon the Tower Loan people by the lender under their guaranty; that Tower Loan made payment; that Economy, in consideration of such payment, endorsed its note without recourse and delivered the same to Tower Loan; and that, demand by the duly substituted trustee for possession of the automobile having been refused, an affidavit for replevin was filed in the circuit court, after the papers had been placed in the hands of an attorney for collection. After execution of the writ, the declaration was filed.

Appellants filed both a demurrer and an answer. Although they urged several grounds as the basis of their demurrer, consideration of only two of these grounds is deemed necessary. In the first place, they say that their obligation in the note is to Economy Finance Company and that the Tower Loan people did not sign or endorse it. Thus they say that there was no guaranty by them; and, under the Statute of Frauds, Sec. 264(a), Code of 1942, Rec., they could not be required to discharge the obligation.

But they are not privileged to invoke the statute for an adverse party. Peaslee Gaulbert Paint & Varnish Company v. Lumpkin, 238 Miss. 637, 119 So.2d 772; 49 Am.Jur., Statute of Frauds, Secs. 588 and 592, pp. 896 and 901-902. Besides, Allen v. Smith & Brand, 160 Miss. 303, 133 So. 599, cited by appellants, holds as follows: 'Where a person has received a valuable consideration from either party for the purpose of paying the debt of another, distinct from, and independent of, the original debt, and thereupon promises payment of the original debt, such promise would be an original undertaking, and not within the Statute of Frauds; 'as in the case of being furnished with funds for the purpose of paying the debt."

In the second place, they say that the affidavit failed to show a breach of the conditions in the deed of trust. But actually it was charged that possession of the automobile was wrongfully detained by the Powells, and that the trustee was legally entitled to the immediate possession in order that he might faithfully execute the powers and duties vested in him by the deed of trust and the substitution. This was in accordance with the specifications provided for in Sec. 2841, Code of 1942, Rec. The plaintiff is not required to set forth his muniment of title. The necessary allegations of the statute are ownership and the right of possession. In North v. Delta Chevrolet Co., Inc., 188 Miss. 252, 194 So. 478, neither the conditional sales contract nor a copy was attached to the declaration, but the case held that it was not necessary to make profert of the contract in order to assure admission. Consequently the demurrer was properly overruled.

The appellants say that it was error to admit the contract of guaranty by the Tower Loan and Economy, Ex. P-1, over their objection. They say that, under Secs. 1469 and 1470 of the Code, profert of this instrument with the declaration was first necessary.

In Quarles v. Hucherson, 139 Miss. 356, 104 So. 148, which was an action of replevin, copies of the note and deed of trust, referred to in the declaration, were not filed therewith, and, for that reason, it was contended that these papers were not admissible in evidence. However, the opinion explained that replevin is an action ex delicto and not ex contractu, and that a writing evidencing the plaintiff's title to the property is not the foundation of the action, but is a mere matter of inducement. Winn v. Eatherly, 187 Miss. 159, 192 So. 431, also held that Secs. 1469...