Rea v. Turner

• Decision Date: 21 October 1935
• Docket Number: 31838
• Citation: 163 So. 539,174 Miss. 13
• Court: Mississippi Supreme Court
• Parties: REA et al. v. TURNER et al

163 So. 539

174 Miss. 13

REA et al. v. TURNER et al

No. 31838

Supreme Court of Mississippi

October 21, 1935

Division A

RECEIVERS.

Mortgagors could not maintain bill against receiver of mortgagee building and loan association under Moratorium Act for injunction to stay sale of property in chancery court which did not appoint receiver, without first obtaining consent of chancery court which appointed receiver (Laws 1934, chap 247).

HON. R W. CUTRER, Chancellor.

APPEAL from the chancery court of Pike county HON. R. W. CUTRER Chancellor.

Suit by Tullie L. Turner and another against W. O. Rea, receiver of the Building & Loan Association of Jackson, and another. From the decree, the defendants appeal. Reversed and remanded, with directions.

Reversed and remanded.

Sullivan & Sullivan, of Hattiesburg, for appellants.

Receiver appointed by judicial authority, in the absence of statute to the contrary, cannot be sued without leave of court which appointed him.

Rea v. O'Bannon, 158 So. 916.

Court having jurisdiction of receivership has full control of its affairs, and consent of such court is requisite to filing of suit in another court to enjoin receivership proceeding.

Sullivan v. Hughes et al., 161 So. 316.

Where association holding deed of trust was placed in receivership and chancery court which appointed receiver authorized trustee to foreclose, chancery court of another county could not entertain bill for injunction for moratorium hearing without complainants' obtaining consent of court which appointed receiver.

Laws of 1934, chap. 247; Sullivan v. Calvin, 161 So. 677.

Justin J. Cassidy, of McComb, for appellees.

In the lower court one of the reasons that we presented to the court for overruling the demurrer was that the failure to obtain an order from the chancery court of Hinds county was an affirmative defense that should have been pleaded and not raised by demurrer.

The question of how a failure to obtain this consent was not raised in either of the other two cases filed by counsel for appellant in his brief, but we respectfully submit that the logical way to present this proposition would be by pleading it for the special reason that all of these facts with reference to the receivership are peculiarly within the knowledge of the defendant, Building & Loan Association, and a failure to so plead it justified the lower court in overruling the demurrer, thus deciding that the bill of complaint stated a cause of action without alleging that permission had been obtained to sue the receiver.

The appellant asks that the lower court be reversed and the bill dismissed, but we respectfully submit that if the cause is reversed it ought to be remanded in order to give the appellees an opportunity to apply for permission to present this suit in the chancery court of Pike county and to amend their bill accordingly, because otherwise they will not have a chance to get a hearing on the real merits of the bill which is an effort to obtain the benefit of what is known as our moratorium statute intended for the benefit of persons in the distressing situation of the complainants as disclosed by the record in this case.

OPINION

Cook, J.

On the 18th day of October, 1929, the appellees, Tullie L. Turner and Mattie M. Turner, borrowed from the Building & Loan Association of Jackson, Mississippi, the sum of two thousand five hundred dollars, and to secure the payment of the indebtedness, they executed a deed of trust on property situated in Pike county, Mississippi. Subsequently the Building & Loan Association of Jackson was, by the chancery court of Hinds county, placed in receivership for the purpose of liquidation, and W. O. Rea was appointed receiver. Thereafter, under the direction of the chancery court of Hinds county, the said W. O. Rea appointed the appellee C. W. Sullivan, as substituted trustee in the said deed of trust, and directed him to foreclose it and sell the property covered thereby to satisfy the balance of said indebtedness, which was then past due; and, in pursuance of these directions, the substituted trustee advertised the said property for sale.

Thereafter, seeking to avail of the provisions of chapter 247, Laws 1934, known as the Moratorium Act, the appellees filed a bill in the chancery court of Pike county, against W. O. Rea, receiver of the Building & Loan Association of Jackson, and C. W. Sullivan, substituted trustee, praying for an injunction to stay the sale of said property. The bill alleged that, in addition to the balance due on the aforesaid first deed of trust, the appellees had executed a second deed of trust on the said land to secure an indebtedness to the beneficiary named therein, and also owed the sum of about eight hundred sixty dollars for taxes and special assessments on the said land, and that since, during the year 1934, the appellees were unable to make the fixed payments on said indebtedness as they fell due, and also make the necessary payments of taxes and special assessments, they applied to the Home Owners' Loan Corporation for a loan to pay off all the aforesaid indebtedness against said property. That the said Home Owners' Loan Corporation approved a loan on said property, but not for a sum sufficient for said purposes, unless the first mortgage indebtedness due to the said W. O. Rea, receiver, was voluntarily reduced by the cancellation of a part thereof, or by the acceptance of a second lien for a portion of said indebtedness, and that the said Building & Loan Association, or W. O. Rea, receiver, refused to accept these terms for refinancing the indebtedness. As an exhibit to the bill, there was filed a copy of the substituted trustee's notice of sale, which recited that the Building & Loan Association of Jackson was being liquidated under the directions of the chancery court of Hinds county, Mississippi, and that said court had entered an order directing the substitution of a trustee in said deed of trust, and the foreclosure thereof.

Upon the filing of the aforesaid bill of complaint, a temporary injunction was...