Tate v. Colvard

• Decision Date: 03 February 1936
• Docket Number: 32059
• Court: Mississippi Supreme Court
• Parties: TATE v. COLVARD

165 So. 433

174 Miss. 624

TATE v. COLVARD

No. 32059

Supreme Court of Mississippi

February 3, 1936

Division A

1 MORTGAGES.

Decree requiring mortgagor, obtaining moratorium stay, to commence monthly payments as of first of month during which decree was rendered instead of as of date mortgagee was enjoined from foreclosing mortgage could not be held error in absence of evidence on which chancellor acted (Laws 1934, chapter 247 section 4).

2. APPEAL AND ERROR.

Decree of chancery court based on evidence will be presumed to be correct where evidence on which court acted is not made part of record on appeal.

HON. R E. JACKSON, Chancellor.

APPEAL from the chancery court of Leflore county HON. R. E. JACKSON, Chancellor.

Suit by M. W. Colvard against the Wilson Banking Company Liquidating Corporation, wherein the cause was revived in the name of A. A. Tate to whom the rights of the defendant had been assigned. From the decree, A. A. Tate appeals. Affirmed.

Affirmed.

Ward Allen, of Greenwood, for appellant.

The only error assigned reads as follows: "The court below erred in fixing the rent to be paid by the mortgagee to begin as of June 1, 1935, whereas the same should have begun as of October 8, 1934, the date the mortgagee was enjoined from foreclosure."

Section 4, chapter 247, Laws of 1934.

The contract of the mortgagee was suspended by the serving of the injunction on October 8, 1934, and that is the only proper date for the compensation to begin.

It is no sound argument to say that compensation should not be paid for the intervening months because the mortgagee of its own volition took the case out of the court below by prosecuting an interlocutory appeal. No question of election of remedies is involved, nor can estoppel to claim the rent be successfully contended for. The mortgagor parted with nothing of value because of the appeal, nor was he led to change his position to his disadvantage.

H. C. Mounger, of Greenwood, for appellee.

The chancellor had the evidence before him on which to fix the rents and reasonable value of the property, and he fixed it accordingly.

There is nothing in the answer asking for rent or asking that it begin at a certain time.

In the absence of the stenographer's notes it cannot be said that the chancellor was wrong or abused his discretion.

The statute provides that the chancellor shall determine the reasonable value of the income of said property or if it has no income then their reasonable rental value, and shall require the mortgagor to pay all or a reasonable part of said income or rental value in or toward the payment of taxes, insurance and interest on the mortgage indebtedness, together with a reasonable sum for the upkeep of the property. It will be seen from the decree that all this was done.

The statute further provides that: Said payments shall be made at such times and in such manner as shall be fixed and determined and ordered by the court, or chancellor in vacation, and as according to the circumstances may appear just and equitable, for a term not to exceed two years.

The chancellor did fix the amounts, and the time at which the payment should begin, and when they are to be made. For anything to the contrary appearing in the record, this must have been just and equitable, or at least seem so to the chancellor in the light of the evidence.

This appeal is based solely on the ground that the chancellor should have fixed the beginning of the rent on October 8, 1934, several months before they were asked for, eight months before. We submit that the matter was clearly in the discretion of the chancellor after hearing all the evidence, and that in the light of the record, the action of the chancellor was just and equitable and that the decree should be affirmed.

Argued orally by Ward Allen, for appellant, and by H. C. Mounger, for appellee.

OPINION

Cook, J.

Appellee M. W. Colvard, is the owner of certain real property located in the city of Greenwood, Mississippi, upon which there is a mortgage which was held by the Wilson Banking Company Liquidating Corporation at the time this suit was instituted. The suit was begun by the filing of a bill in the chancery court seeking to enjoin an attempted foreclosure of the said mortgage, under the provisions of the Mortgage Moratorium Law, chapter 247, Laws 1934. A motion to dissolve the temporary injunction issued upon the filing of this bill, on...