Ravesies v. Martin

Citation190 Miss. 92,199 So. 282
Decision Date23 December 1940
Docket Number34347
CourtUnited States State Supreme Court of Mississippi
PartiesRAVESIES et al. v. MARTIN et al

APPEAL from the chancery court of Forest county, HON. BEN STEVENS Chancellor.

Suit by D. H. Ravesies and another against E. Martin, Sr., and another, for an accounting by defendant E. Martin, Sr., as a mortgagee in possession of land and to enjoin the foreclosure of a renewal deed of trust and cancel such deed of trust as a cloud upon complainants' title. From a final decree dissolving a temporary injunction which had been issued by the chancellor to prevent the sale of the property dismissing the bill of complaint upon the final hearing on the merits and assessing damages in favor of defendant E Martin, Sr., against the injunction bond, complainants appeal. Reversed and remanded.

Reversed and remanded.

Witherspoon & Witherspoon, of Meridian, for appellants.

The decree of the court below is erroneous because it undertook to dismiss the original and amended bills for want of jurisdiction and at the same time proceeded to decide all the merits of the case.

Brown v. Bank, 31 Miss. 459; Brooks v. Kelly, 63 Miss. 616; Griffith's Miss. Chancery Practice, sec. 156, p. 154, sec. 157, and sec. 413; Miss. Code 1930, sec. 363; Pollard v. Phalen, 98 Miss. 158-9, 33 So. 453; Gulf Export Co. v. State, 112 Miss. 452, 73 So. 281; Wilkerson v. Jenkins, 77 Miss. 605, 27 So. 611; Stanley v. Cruise et al., 134 Miss. 542, 99 So. 376; Miss. Laws of 1940, Chap. 233.

The appellants were entitled to an accounting from Martin to ascertain whether Ravesies was indebted to Martin or Martin was indebted to Ravesies or else to a decree cancelling the renewal deed of trust because it was without consideration or had been more than paid.

Martin was a mortgagee in possession, and, as such, liable to account for rents collected or which could have been collected by reasonable diligence.

National Mut. Bldg. & L. Assn. v. Houston, 80 Miss. 31, 31 So. 540.

The decided cases in Mississippi show that it is not necessary for a mortgagee in possession to realize that he is a mortgagee in possession in order to place himself in the same legal position and to subject himself to the same liability to account as he would have been under the mortgages used elsewhere. The case of Houston v. Building & Loan Assn., above referred to, was one where a regular mortgage was involved, but most of our decisions on the subject are cases where a man takes a deed as security for the debt and goes into possession and the deed given as security is subsequently held to be a mortgage, or where the mortgagee goes into possession under a void foreclosure. Our court has defined the duties of the mortgagee in such cases and has laid down the same rules as to the mortgagee's liability to an accounting in equity as prevail in other states.

Watson v. Perkins, 88 Miss. 64, 40 So. 643; Bldg. & L. Assn. v. Houston, 81 Miss. 386, 32 So. 911; Matthews v. Memphis R. R. Co., 108 U.S. 368, 2 S.Ct. 780, 27 L.Ed. 756, 41 C. J. 612, sec. 580 and p. 631; Miss. Code 1930, sec. 381.

Record shows renewal note was without any valuable consideration to support it.

Miss. Code of 1930, sec. 2684.

Martin is estopped to claim any lien against the property in dispute because he represented to the McLendons that his brother-in-law Donald owned the property, induced them to buy the property from Donald, and sold them the building materials with which to repair it, and the court below therefore erred in refusing to cancel the deed of trust as a cloud upon the McLendon's title or in not proceeding with the trial of the cause.

Merwin's Equity and Equity Pleading, pp. 513-516, 518.

None of the estoppels urged in behalf of the appellee are valid as against Ravesies; none of them are valid as against Robert L. McLendon; and none of them are valid as against Mrs. Emma McLendon.

22 C. J. 348-349, sec. 402 (2).

E. C. Fishel, of Hattiesburg, for appellees.

Complainant failed to prove fraud.

Otts v. Myers, 152 So. 834, 169 Miss. 408; Griffith's Chancery Practice, sec. 589; Maybin v. Biloxi, 77 Miss. 675, 28 So. 566, 22 C. J. 146, sec. 82; Wherry v. Latimer, 103 Miss. 534, 60 So. 642; Western Union Tel. Co. v. Showers, 112 Miss. 411, 73 So. 276, 27 C. J. 44, sec. 170, 12 R. C. L. 436, sec. 186; Metropolitan Life. Ins. Co. v. Hall, 118 So. 826, 152 Miss. 413; Martin v. Gill, 181 So. 849, 182 Miss. 810; N.Y.Life Ins. Co. v. Gill, 182 So. 109, 182 Miss. 815; McArthur v. Fillingame, 186 So. 828, 184 Miss. 869.

We respectfully submit to the court that when the complainant had selected the forum and had gone through the trial of his case from step to step, knowing that his right to have a trial in the Chancery Court of Forrest County depended on the fact that the venue was properly made and the court had jurisdiction of the parties and subject matter, and even going to the great length of trying to prove title to lands by general reputation; and, notwithstanding all this, at no time asking for a change of venue was, so far as complainant and appellant here is concerned, effective waiver of their right to complain because the court did not transfer the jurisdiction to Jasper County, Mississippi.

67 C. J. 94, sec. 151; Christensen v. Foster (Tex. Civ. App.), 297 S.W. 657.

Venue is waived by the defendant unless seasonably raised, and the failure to raise it at the proper time estops the defendant from raising the question of venue.

Stanley v. Cruise, 99 So. 376, 134 Miss. 542, 27 R. C. L. 82; Moyse v. Cohn, 76 Miss. 590, 25 So. 169; Griffith's Chan. Practice, sec. 157.

When the complainant Ravesies and his wife on April 29, 1933 renewed the note and deed of trust made exhibit to the original and amended bills of complaint, without requiring any accounting, they waived any right to complain of the contents of said note and deed of trust.

McArthur v. Fillingame, 186 So. 828, 184 Miss. 869.

By the renewal the original contract is superseded, and the new contract becomes the subsisting obligation between the parties.

Brewer v. Automobile Sales Co., 147 Miss. 603, 111 So. 578; Memphis Automatic Music Co. v. Chadwick, 164 Miss. 635, 146 So. 137; Cherokee Mills v. Conner, 164 Miss. 704, 145 So. 735; Tallahatchie Home Bank v. Aldridge, 169 Miss. 597, 153 So. 818; Gay v. First Nat. Bank, 172 Miss. 681, 160 So. 904.

The complainants McLendons by reason of the fact that they lived on the land for ten years without paying a dime rent, as is testified to by both McLendon and his wife, would, in the light of this record, put a court of equity to shame if it by its decree permitted the complainants McLendons to take possession of this property as owners, and in being defeated in said ownership in the suit of the said Ravesies against them, and while the suggestion of error was still pending in the Supreme Court, the said McLendons could for a $ 50 consideration have obtained a quitclaim deed from Ravesies and thereafter held the property and prevented McLendon from collecting his rent, if ever such a contract was made. And then, in the face of those facts caused this defendant to lose his deed of trust by the aforesaid wrongful acts of McLendon, would necessitate the change of some of the maxims of equity, especially that particular maxim, that he who invokes the charge of fraud in chancery by coming as a complainant must come with clean hands.

Griffith's Chan. Practice, sec. 32.

Argued orally by S. A. Witherspoon, for appellants, and by E. C. Fishel, for appellees.

OPINION

McGehee, J.

This suit was filed in the chancery court of Forrest County on December 30, 1937, against E. Martin, Sr., and the trustee in a deed of trust executed by D. H. Ravesies and wife in favor of the said Martin on May 29, 1933, conveying to the trustee a house and acre of land at Vossburg in Jasper County and certain lots in the town of McLaurin in Forrest County, securing an alleged indebtedness of $ 1, 565, as evidenced by a promissory note, representing a renewal of two former notes and deeds of trust, one of which was for $ 400 dated January 4, 1927, and the other for $ 600 dated April 18, 1927, given by Ravesies and wife to indemnify and save harmless the said Martin as endorser on a loan of that aggregate amount obtained by Mr. Ravesies during the year 1926 from the Bank at Heidelberg. The bill of complaint sought an accounting from Martin as a mortgagee in possession of the property at Vossburg, and also to enjoin the foreclosure of the renewal deed of trust and cancel the same as a cloud upon the title of the appellants. From a final decree dissolving a temporary injunction which had been issued by the chancellor to prevent the sale of the property, dismissing the bill of complaint upon the final hearing on the merits and assessing damages in favor of the appellee Martin against the injunction bond, the appeal here is taken.

It appears that at the time of the filing of the original and amended bills of complaint the title of the lots at McLaurin in Forrest County had matured in the state under tax sales and that therefore neither of the complainants then owned any of the property in the deed of trust which is described as being in Forrest County. This fact was developed by the deraignment of title contained in the amended bill of complaint. Thereupon, the defendants raised the point by demurrer that Section 363 of the Code of 1930, which governs the venue of suits in chancery, provides that suits to cancel clouds upon the title of real estate shall be filed in the county where the land or some part thereof is situated. The case proceeded to trial on the merits over the objections of the defendants until the conclusion of all the evidence introduced by the complainants, and a motion was...

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  • Leake County Coop. (A.A.L.) v. Barrett's Dependents, 45356
    • United States
    • United States State Supreme Court of Mississippi
    • May 26, 1969
    ...Addition Ass'n. v. Commissioner of Internal Revenue, 323 U.S. 310, 65 S.Ct. 289; 89 L.Ed. 260 (1945); compare Ravesies v. Martin, 190 Miss. 92, 199 So.2d 282 (1940). In the instant case the question was not raised as to the venue of the action until after this Court had affirmed the judgmen......
  • Key v. Wise, 77-2986
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    • November 5, 1980
    ...state court lawsuit thus involved a disposition of the property. Under Mississippi law, that action was in rem. See Ravesies v. Martin, 190 Miss. 92, 199 So. 282, 285 (1940).9 Federal law, however, governs some aspects of a quiet title action brought pursuant to § 2409a. Specifically, the p......
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    • February 10, 1941
    ......643,. 112 So. 482; U.S. F. & G. Co. v. Parsons, 147 Miss. 335, 112. So. 469, 53 A.L.R. 88. . . The. instrument executed by Martin & Carrithers Bros. to The. Council & Lewy Company under date of January 14, 1933, was an. assignment of the contract of January 3, 1933. But even ......
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    • United States State Supreme Court of Mississippi
    • October 4, 1965
    ...Only a money judgment was sought as to them. Black's Law Dictionary, 4th Ed. 899; 21A Words & Phrases, pp. 278-287; Ravesies v. Martin, 190 Miss. 92, 199 So. 282, 285. The Chancery Court attachment proceedings, appurtenant to 'Attachments in Chancery in the State of Mississippi are unique p......
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