Raleigh State Bank v. Williams

• Decision Date: 07 May 1928
• Docket Number: 27078
• Citation: 150 Miss. 766,117 So. 365
• Court: Mississippi Supreme Court
• Parties: RALEIGH STATE BANK v. WILLIAMS. [*]

117 So. 365

150 Miss. 766

RALEIGH STATE BANK v. WILLIAMS. ^[*]

No. 27078

Supreme Court of Mississippi

May 7, 1928

Division B

On Motion to Correct Judgment and on Suggestion of Error June 11, 1928.

1. EVIDENCE. True consideration for conveyance may be shown by parol.

Principle that parol evidence is not admissible to vary terms of written contract has no application to the consideration recited in the contract, and true consideration for conveyance may be shown by parol.

2 MORTGAGES. Purchasers on sale under second deed of trust after conveyance to mortgagors by one securing conveyance from purchaser under first deed of trust, acquired title of mortgagors.

Where after foreclosure under first and second deeds of trust, holder of third deed of trust purchased lands from purchaser at sale under first deed of trust, and subsequently conveyed property to mortgagors, taking a deed of trust securing a certain amount including a stated purchase price, purchasers under second deed of trust thereby acquired title secured by mortgagors subject to incumbrance evidenced by deed of trust executed by mortgagors at time of conveyance; it being immaterial whether amount secured by deed of trust constituted purchase money or not, since principle of law whereby title of mortgagors inured to benefit of purchaser under second deed of trust gave to latter no greater rights than that acquired by mortgagors.

3. LANDLORD AND TENANT. Relation of landlord and tenant did not exist between mortgagors disputing right to possession of purchaser under deed of trust so as to create lien on agricultural products (Hemingway's Code 1927, section 2492).

Where mortgagors in possession of land pursuant to conveyance from one purchasing on sale under first deed of trust disputed right of purchaser under second deed of trust to possession of lands and refused to acknowledge superior right until after court decision, relation of landlord and tenant did not exist so as to give to purchaser under second deed of trust a lien on agricultural products produced on leased premises under Hemingway's Code 1927, section 2492 (Code of 1906, section 2832), since such relation must exist as result of contract either express or implied.

ON MOTION TO CORRECT JUDGMENT.

4. APPEAL AND ERROR. Motion to correct judgment before disposition of suggestion of error is premature. A suggestion of error, when sustained, necessarily results in a change of judgment, and it is premature to file a motion to correct a judgment until the suggestion of error is disposed of.

APPEAL from chancery court of Simpson county, HON. T. P. DALE, Chancellor.

Suit by Mims Williams against the Raleigh State Bank and others, wherein defendant named filed a cross-bill. Decree for complainant and denying relief under the cross-bill, and defendant named appeals. Reversed and remanded.

Affirmed. Overruled. Suggestion of error sustained, and the cause remanded.

Hughes, Nobles & Lane, for appellant.

Hilton & Hilton, for appellee.

ANDERSON, J. ETHRIDGE, P. J. ANDERSON, J.

OPINION

ANDERSON, J.

Appellee, Mims Williams, filed the bill in case in the chancery court of Simpson county against appellant, Raleigh State Bank, and W. T. and E. B. Martin, to foreclose a deed of trust on certain lands in Simpson county described in the bill, which deed of trust had been executed by the Martins, in appellee's favor, on February 9, 1925. Appellant, Raleigh State Bank, answered the original bill, making its answer a cross-bill. In its answer it denied some of the material allegations of the original bill, and made its answer a cross-bill, by which it sought to recover of appellee something over two thousand dollars as rents for the lands involved for the years 1925 and 1926. The case was tried on original bill, answer, and cross-bill of appellant, Raleigh State Bank, appellee's answer to the cross-bill, and proofs, resulting in a decree granting appellee substantially the relief prayed for in the original bill, and denying appellant, Raleigh State Bank, the relief it prayed for in its cross-bill. From that decree appellant, Raleigh State Bank, prosecutes this appeal. The Martins did not join in the appeal. On November 30, 1919, and for some time prior thereto, the Martins owned the lands upon which appellee held the deed of trust which he sought to foreclose by the original bill in this cause. On that date the Martins executed a deed of trust in favor of Geo. M. Foreman on said lands to secure an indebtedness of three thousand dollars to Foreman. On February 27, 1922, the Martins borrowed from appellant two thousand two hundred eighteen dollars and twenty-eight cents, securing the payment of the same with a second deed of trust on the lands involved. Still later the Martins borrowed from appellee the sum of one thousand three hundred ninety dollars, and, to secure the amount, executed a third deed of trust on said lands. The Martins made default in all three of these deeds of trust. On July 7, 1924, the Foreman deed of trust, which was the senior of the three named, was foreclosed under power of sale therein, for the purpose of satisfying the indebtedness thereby secured. At that sale W. P. Kent became the purchaser of the lands for three thousand three hundred twenty-seven dollars and forty cents, and received a deed in due form from the trustee making the sale. On January 10, 1925, appellant's deed of trust on the land was foreclosed by sale through a substituted trustee under power of sale contained therein, at which foreclosure sale appellant became the purchaser of the land for two hundred fifty dollars, receiving the trustee's deed therefor in due form. On December 31, 1924, appellee purchased the lands from W. P. Kent, and received a deed thereto from Kent. On February 9, 1925, the appellee conveyed the lands to the Martins in consideration of three thousand five hundred dollars; and on the same day and as a part of the same transaction the Martins executed a deed of trust on the lands and crops to be raised thereon, and on other personal property, to secure an indebtedness to appellee described in the deed of trust as follows:

"Fifty-eight hundred and fifty & no/100 dollars evidenced by their two promissory notes of even date herewith due and payable October 1, 1925; one note for five thousand three hundred fifty dollars represents amount owing up to January 19, 1925, including interest to due date; one note for five hundred dollars given for advances made and to be made after January 19, 1925. The note for five thousand three hundred fifty dollars includes the purchase price for land this day deeded to the parties of the second part by party of the first part, and the land described hereinafter is the land so deeded.

"And whereas, said parties of the first part have agreed to secure the payment of said indebtedness, as also, any further amounts that may be advanced as aforesaid and not mentioned herein."

Still later appellant filed its bill in the chancery court of Simpson county against the Martins to establish its title to the lands involved by virtue of its purchase under the foreclosure of its deed of trust thereon. That cause was tried, resulting in a decree in appellant's favor. From that decree the Martins appealed to the supreme court, where the decree of the court below was affirmed. Martin v. Raleigh State Bank, 146 Miss. 1, 111 So. 448, 51 A. L. R. 442. The court held, in that case, that when the Martins reacquired title to the lands through the conveyance from appellee, the title so acquired inured to the benefit of appellant by virtue of the warranty in its deed of trust, and the foreclosure thereof and purchase of the lands by appellant at such foreclosure sale, and therefore appellant's title to the lands was superior to that of the Martins, but subject to the rights of appellee's mortgage of February 9, 1925. Appellee was not a party to that cause. Soon after the affirmance by the supreme court of the decree in that case, appellee filed the bill in this case for the foreclosure of his deed of trust of February 9, 1925.

Appellant concedes that appellee has the right to enforce its deed of trust of February 9, 1925, against the lands for the amount of the unpaid purchase money therefor due by the Martins to appellee, but takes issue with appellee that the latter is entitled to enforce it for any amount above the purchase money. And the Martins having been in possession of and farmed the lands during the years 1925 and 1926, and having sold to appellee a large part of the crops raised thereon for those years in payment of their indebtedness to appellee, appellant contends that the Martins were due it a reasonable rental for those years, alleged to be about two thousand dollars, for the payment of which it had a landlord's lien on such crops, and appellee, by such purchase of the crops, having converted the same to his own use, was liable to appellant for such rent to the extent of the crops so converted.

W. P. Kent, by his purchase of the lands at the foreclosure of the Foreman deed of trust (which was the senior of the three deeds of trust), acquired title to the lands freed from the other two deeds of trust. So far as concerned, therefore, the title to the lands stood as if the other two deed of trust had never been given thereon. By Kent's conveyance of the lands to appellee the later stood exactly in Kent's shoes with reference to the title thereto. Appellee owned the lands, as did Kent, entirely freed from the other two deeds of trust. Appellee was under no obligation whatever to hold or convey the lands with a view of subserving the interest of either the Martins or the appellant. He was absolutely free to sell the lands to any person he might select, at any...