Taylor v. Federal Land Bank of New Orleans
| Decision Date | 11 January 1932 |
| Docket Number | 29621 |
| Citation | 138 So. 596,162 Miss. 653 |
| Court | Mississippi Supreme Court |
| Parties | TAYLOR et al. v. FEDERAL LAND BANK OF NEW ORLEANS |
1 MORTGAGES.
Stranger removing timber from mortgaged land without mortgagee's consent, thereby materially impairing value of security, is liable to mortgagee.
2 MORTGAGES.
Burden of showing material impairment of security by stranger's removal of timber is met by proof that at foreclosure sale mortgaged property brought less than mortgage debt.
3 MORTGAGES.
Measure of mortgagee's damages where stranger removes timber is market value of timber cut and removed, not to exceed impairment of security, or amount of mortgage debt remaining unpaid after foreclosure.
4. MORTGAGES.
Strangers removing timber held not liable to mortgagee as to market value which was paid to mortgagee on mortgage indebtedness.
5. MORTGAGES.
Strangers removing timber held liable to mortgagee to extent of market value of timber which was paid to mortgagor or in discharge of his liabilities other than mortgage debt.
APPEAL from circuit court of Attala county HON. J. F. ALLEN, Judge.
Suit by the Federal Land Bank of New Orleans against Clayton Taylor and others. From the judgment, defendants appeal. Reversed and rendered.
Reversed, and judgment here for appellee.
Dave E. Crawley, of Kosciusko, for appellants.
In order for the plaintiff to be entitled to recover a judgment against the defendants it is essential that the plaintiff prove on the trial of the case that the timber was wrongfully cut and removed from the mortgaged premises by the defendants, and that the plaintiff's security was impaired as a result thereof, and that the mortgaged debt or a portion thereof was unpaid as a consequence.
27 Cyc., p. 1272, par. 5.
The measure of damages that the plaintiff is entitled to recover against a third person for waste, impairing plaintiff's security is the diminution in the market value of the whole property by reason of the alleged trespass.
E. H. Ogdon Lumber Co. v. Busse, 92 A.D. 143, 86 N.Y.S. 1098.
Certainly the plaintiff's judgment against the defendants should be limited to ninety-two dollars, that amount being the difference between the sum of money paid by the defendants to the plaintiff on the account of the annual installment due by Carlisle on the mortgaged debt and the full value of the timber removed from the mortgaged premises by the defendants.
J. D. Guyton, of Koscuisko, for appellee.
A mortgagee or other holder of a lien on real property has a right of action against a third person for damages to the real property which impairs his security.
Matthews v. Silsby Brothers, 37 A. L. R. 1116; Federal Land Bank v. Mississippi Power & Light Co., 157 Miss. 737, 128 So. 98; Fair Lbr. Co. v. Federal Land Bank, 158 Miss. 87.
The mortgagee after foreclosing his mortgage and ascertaining that the proceeds of the property are insufficient to satisfy the debt, may bring suit against the third person for injuries done to the mortgaged premises prior to foreclosure and sale.
19 R. C. L., pp. 341, 342, sec. 115.
The measure of damages for wrongfully cutting timber from the land of another is the value of the timber cut.
Evans v. Miller, 58 Miss. 120; Bond v. Griffin, 74 Miss. 599, 22 So. 187; 38 Cyc. 1130, par. (b).
The measure of damages was the diminution in the value of the security, not exceeding the balance; in other words, the value of the property removed.
Planters Bank v. Lumus Cotton Gin Co., 128 S.E. 876, 41 A. L. R. 592; 41. C. J. 652, note 7; Tennessee Coal, Iron & Railroad Co. v. Jourdan, 128 So. 132; Texas Vic. A., 28 S.W. 250.
The general rule is that a voluntary payment cannot be recovered.
37 Cyc. 1415, par. C; 37 Cyc. 1381, note 79.
A voluntary payment for the benefit of another gives the payer no right of action against the one for whose benefit the payment was made, unless he subsequently ratifies it.
27 Cyc. 838, par. H.
In this case there is no mutual indebtedness between the parties to this suit and there can be no set off.
The appellee, the Federal Land Bank of New Orleans, instituted this suit in the circuit court of Attala county against the appellants, seeking to recover the value of certain timber alleged to have been cut and removed from land on which the appellee held a deed of trust. The declaration alleges that one J. A. Carlisle borrowed from the appellee the sum of...
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Feliciana Bank v. Manuel & Sessions, L.L.C.
...specifically refer to timber and create explicit obligations such as not to cut without authorization. Taylor v. Fed. Land Bank of New Orleans, 162 Miss. 653, 656, 138 So. 596, 597 (1932). Conveyances of real property, though, without further elaboration and whether the conveyance is in tru......