Sack v. Gilmer Dry Goods Co.

• Decision Date: 23 January 1928
• Docket Number: 26798
• Citation: 115 So. 339,149 Miss. 296
• Court: Mississippi Supreme Court
• Parties: SACK v. GILMER DRY GOODS CO. [*]

115 So. 339

149 Miss. 296

SACK v. GILMER DRY GOODS CO. ^[*]

No. 26798

Supreme Court of Mississippi

January 23, 1928

Division B

APPEAL from chancery court of Coahoma county, Second district. HON HARVEY MCGEHEE, Chancellor.

Suit by Mrs. Martha S. Sack against the Gilmer Dry Goods Company. Bill dismissed, and complainant appeals. Affirmed.

Affirmed.

Cutrer & Smith, for appellant.

The several deeds of conveyance from A. Sack to Gilmer Dry Goods Company and J. B. Lindsey incorporated a sufficient description which of themselves would constitute constructive notice. See Baldwin v. Anderson, 103 Miss. 462; Parker v. Foy, 43 Miss. 260, 5 Am. Rep. 484; Ladnier v. Cuevas, 138 Miss. 502; Willie v Gattman, 53 Miss. 721; Stone & Gravel Co. v. Archer, 120 Miss. 453; Leake v. Caffey (Miss.), 19 So. 716; Deason v. Taylor, 53 Miss. 697; Davis v. Seybold, 195 F. 402.

We take the further position, however, that even if the descriptions contained in the two deeds above mentioned were imperfect, nevertheless by the undisputed testimony in the record the defendant, A. Sack, in truth and in fact had no property rights in the lots described, and therefore, the judgment creditor has not the right to proceed to sell a bare, naked legal title, which would cloud the title of the complainant, who claims the right through a bona-fide purchaser for value without notice of all of the beneficial and equitable rights which A. Sack theretofore had, which rights were acquired prior to the rendition of the judgment in favor of the Gilmer Dry Goods Company. In other words we contend that the judgment creditor is entitled only to what rights the judgment debtor had in and to the property upon which execution is sought to be levied and sold. See McIntyre v. Agricultural Bank, Freem. Ch. 105; Jenkins v. Bodley, S. & M. Ch. 338; Simmons v. Naught, 3 S. & M. 67; Money v. Dorsey, 7 S. & M. 15; Hoy v. Taliafarro, 8 S. & M. 727; Kelly v. Mills, 41 Miss. 267; Foute v. Fairman, 48 Miss. 536; Cannon v. Mercantile Company, 108 Miss. 102; Candler v. Cromwell, 101 Miss. 161; Bank of Ukiah v. Petaluma Sav. Bank (Cal.), 35 P. 170; Sparks v. State Bank (Ind.), 7 Black 469; Albia State Bank v. Smith (Iowa), 119 N.W. 608; Holden v. Garrett, 23 Kas. 98; Wrighter v. Forrester (Ky.); Gelway v. Malchow, 7 Neb. 285; German Nat. Bank v. Queen (N. Y.), 144 N.Y.S. 195; Okla. State Bank v. Burnett (Okla.), 162 P. 1124; Pacific State Bank v. Coats (Wash.), 123 C. C. A. 624; 205 F. 618.

Maynard, FitzGerald & Venable, for appellee.

Mississippi is committed to the doctrine that conveyances containing a bad description are not constructive notice. Simmons v. Hutchinson, 81 Miss. 351. See, also, Gilchrist-Fordney v. Thigpen, 114 Miss. 182; Bowers v. Andrews, 52 Miss. 596; Dingey v. Paxton, 60 Miss. 1038; Nelson v. Abernathy, 74 Miss. 164; Sims v. Warren, 67 Miss. 278; Smith v. Brothers, 86 Miss. 241; Haugton v. Sartor, 71 Miss. 257.

The defective instrument not amounting to constructive notice, there being no actual notice, and the description being void to convey title, two questions remain. It is clear that the legal title remained in A. Sack and was in A. Sack at the date the judgment was obtained. It is in effect contended that notwithstanding this fact the appellee took its judgment lien subject to an equity of reformation and subject to equities of a third party, if any existed. This specific point was passed on by the court in Nugent v. Max Preibatsch, 61 Miss. 402, where a deed was sought to be reformed in effect as against a judgment creditor. The court held that under the recording statutes, similar to statutes in force when the judgment in this case was obtained, that a judgment creditor without notice took free from equities and the case was therefore affirmed. This decision is in line with Mississippi Valley v. Chicago, etc., Ry. Co., 58 Miss. 846.

It will not be contended that A. Sack did not have a legal title or beneficial interest in the land, which he sought to convey to the trustee for the Planters' Bank in the deed of trust, or to quitclaim to Lindsay. The cases cited by counsel for appellant are all cases where title had come in to a judgment debtor, who held as a mere naked trustee having no beneficial interest in the title, or subject to an equity that did not come within the registration laws. Kelly v. Mills, 41 Miss. 267. So was the case of Walton v. Hargrove, 42 Miss. 20. All these were cases where the court overlooked the registry statutes, all of which is pointed out in the Mississippi Valley Company v. Chicago Ry. case, 58 Miss. 846, supra.

ANDERSON, J. PACK, J., took no part in this decision.

OPINION

ANDERSON, J.

Appellant filed her bill in the chancery court of Coahoma county to enjoin a sale, under execution, on a judgment in favor of appellee against A. Sack, husband of appellant, of three lots in the city of Clarksdale, in that county, on the ground that the property levied on by the execution was the property of appellant, and not that of A. Sack, the defendant in execution. There was a trial on bill, answer, and proofs, resulting in a decree dissolving the injunction, dismissing the appellant's bill, and holding appellant and the sureties on her bond liable for the amount of the judgment sought to be enjoined, and, in addition, the statutory damages of five per cent. thereon.

There is no controversy as to the material facts of the case. A. Sack, the husband of the appellant, on the 28th day of February, 1921, was the owner of lots one, two, and three in block forty, in the Central subdivision of Clarksdale, Coahoma county, in this state. On that date, A. Sack, being indebted to the Planters' Bank of Clarksdale, executed a deed of trust on the three lots, with other property at that time owned by him, to secure the indebtedness. The deed of trust described the property as:

"Lots one, two and three (1, 2, and 3) in block forty (40) of the Central subdivision on Second street, in Coahoma county, Miss."

It will be observed that in that description of the property there was omitted the statement that it was situated in the city of Clarksdale. On the 21st day of January, 1925, appellant and her husband, A. Sack, executed a quitclaim deed to the lots, with other property owned by A. Sack, to the Planters' Bank of Clarksdale in payment and satisfaction of said mortgage indebtedness. In this quitclaim deed the property is described as follows:

"The following property located and situated in the First district of Coahoma county, Miss.: . . . Lots one, two, and three (1, 2, and 3) of Central subdivision to the city of Clarksdale according to the map of record in the office of the chancery clerk at Clarksdale."

It will be noticed that in that description of the lots the block number was left out. On February 18, 1925, the appellee, without any actual notice of the mortgage on the lots from A. Sack to the Planters' Bank of Clarksdale, or of the quitclaim deed to the lots from A. Sack and appellant to the Planters' Bank of Clarksdale, obtained a judgment in the circuit court of Coahoma county against A. Sack, and had the same immediately enrolled, as provided by statute. On the 12th day of October, 1925, the Yazoo Delta Mortgage Company, the liquidating agent of the Planters' Bank of Clarksdale, in consideration of two thousand three hundred dollars, cash paid by appellant, conveyed to her the lots involved, properly described.

The trial court held that the description of the lots in the mortgage executed by A. Sack to the Planters' Bank of Clarksdale, as well as the description in the quitclaim deed from A. Sack and the appellant to the bank, was void; and that, when appellee recovered its judgment against A. Sack and had it enrolled, appellee had no notice, either actual or constructive, of the existence of said mortgage and quitclaim deed; and that, therefore, the lien of appellee's judgment was superior in right to appellant's claim of title to the property.

Appellant makes two contentions: First, that in the record of the mortgage to the Planters' Bank and of the quitclaim deed to the latter conveying the lots there was a sufficient description of the lots to put appellee on inquiry and notice; second, that without notice, either actual or constructive, of the property intended to be conveyed by the mortgage and quitclaim deed, appellant's right to the property was paramount to the lien of appellee's judgment against A. Sack, for the reason that, under the law, appellee could only take by execution on its judgment, the interest of the judgment debtor, A. Sack, in the lots, which interest was subject to the rights of the bank to have the mortgage and quitclaim deed to the lots reformed, and the lots subjected to the payment of the bank's indebtedness.

Appellee contends, and the chancery court, as stated, held, that both the mortgage and quitclaim deed to the Planters' Bank were void, because of insufficient description of the lots, and that their record in the office of the chancery clerk of Coahoma county was not sufficient to affect appellee with constructive notice of the property intended to be conveyed by them; and, further, that under our registry statute (section 2787, Code 1906 [Hemingway's Code 1927, section 2446]) appellee, having no actual notice of the mortgage and quitclaim deed, acquired a lien on the lots paramount to appellant's claim to the lots under the conveyance to her from the bank.

As above stated, the description of the lots in the mortgage to the bank, as well as in the quitclaim deed to the bank, was defective, in that in the former the words, "city of Clarksdale," were omitted, and in the latter "block forty," in which the three lots are situated; and there were other blocks besides block forty in the...