Tchula Commercial Co. v. Jackson

• Decision Date: 28 March 1927
• Docket Number: 25847
• Citation: 147 Miss. 296,111 So. 874
• Court: Mississippi Supreme Court
• Parties: TCHULA COMMERCIAL CO. et al. v. JACKSON. [*]

111 So. 874

147 Miss. 296

TCHULA COMMERCIAL CO. et al. v. JACKSON. ^[*]

No. 25847

Supreme Court of Mississippi

March 28, 1927

Division B

1 MORTGAGES. Equity may relieve against mortgagee's buying and selling property contrary to oral agreement with mortgagor. Where a person gives a deed of trust on real estate to secure a debt to a bank, and such bank procures another corporation of which the president of the bank is also president and a largely interested stockholder, to take up a portion of the bank's debt because the loan represents too large a portion of the bank's capital for a single loan, and such corporation also takes a deed of trust upon the same land to secure its debt, and each corporation has separately assigned to it the same insurance policy as collateral security, and where there is an agreement by the commercial corporation to take up the bank's debt, or get it extended, and an agreement by both the bank and the commercial corporation that an agreement verbally made, will be reduced to writing before the sale under the deed of trust is made, or that it would be bought in and held for the benefit of the grantor, who would by the agreement have a specified time in which to pay the debts off, and where the land was sold before the agreement was reduced to writing, and was bought In by the bank and afterwards sold to persons interested in the said corporations, a court of equity has jurisdiction to grant proper relief in the premises.

2 CORPORATIONS. Equity. Mortgagor may sue for relief against sales of mortgaged property contrary to agreement in county where general agent of nonresident insurance company whose policy was assigned to mortgagees is found; bill for relief against sales of mortgaged property by mortgagee is not multifarious for joining insurance company whose policy was also assigned (Code 1906, section 707, as amended by Laws 1918, chapter 149; Hemingway's Code, sections 465, 486, 488, 4093, 4094).

Under hypotheses stated in the foregoing syllabus, the complainant may join as defendants, in a bill for relief, all the defendants in a single suit in a county where a general agent of the insurance company may be found and be doing business in the state; such insurance company being a nonresident corporation. Such bill is not multifarious, the said insurance company being a necessary party to full and complete relief.

3 CORPORATIONS. Venue of suit in county of office of nonresident corporation, necessary defendant, will not be changed became citizen of another county is party thereto (Code 1906, section 707, as amended by Laws 1918, chapter 149).

Under section 707 of the Code of 1906 as amended by chapter 149, Laws 1918, providing that civil actions may be brought in the county in which the defendant or any of them may be found, etc., a process may be issued to any other county or any other defendant, and if any citizen resident of this state be sued in any action, not local, out of the county of his residence, venue shall be changed to the county of his household or residence. The venue will not be changed if suit is brought in a county where any necessary defendant may be found, even though the defendant is a nonresident corporation having an office in such county.

4. FRAUDS, STATUTE OF. Suit for damages may be maintained on mortgagees' oral agreement to buy mortgaged property and hold it for mortgagor, regardless of statute.

Where the bill is filed alleging facts to show hypotheses stated in the first syllabus, alleging a fraudulent purpose on the part of the defendants not to perform the agreement, and the facts as found by the chancellor sustain the contention of the complainant, and such finding is supported by evidence, the statutes of fraud do not apply; the suit not being for specific performance but for damages for failure to carry out the agreement.

5. APPEAL AND ERROR. Where chancellor finds all facts, supreme court reversing decree as to damages will render judgment for proper amount (Hemingway's Code, section 3195).

Under section 4919 of the Code of 1906, section 3195, Hemingway's Code, where a judgment or decree rendered by a chancellor is clearly excessive and all the facts are found by the chancellor, and where the amount of the judgment is based on facts and opinions of witnesses as to value, this court will, on reversing the decree as to the amount of the damages, render judgment for the proper amount without remanding the cause to the court below.

HON. G. C. TANN, Chancellor.

APPEAL from chancery court of Lauderdale county, HON. G. C. TANN, Chancellor.

Suit by E. E. Jackson against the Tchula Commercial Company and others. From a judgment for complainant, the Tchula Commercial Company and another appeal. Affirmed in part, and reversed in part.

Affirmed in part, and reversed in part.

Boothe & Pepper and Bozeman & Cameron, for appellants.

I. The demurrers of the Merchants' & Planters' Bank and Tchula Commercial Company should have been sustained. The bill is clearly multifarious. The authorities on this point are practically one way. See section 358, Hemingway's Code, Multifariousness. The leading case in this state as to multifariousness of a bill in chancery is Carter v. Kimbrough, 122 Miss. 543. See, also, Darcey v. Lake, 46 Miss. 109; Roberts v. Starke, 47 Miss. 257; Tohms v. Tohms, 46 Miss. 263; Banking Co. v. Humphries, 64 Miss. 258, 1 So. 232; Hardie v. Bulger, 66 Miss. 577, 6 So. 86; McNeel v. Burton, 1 How. 510; Boyd v. Swing, 38 Miss. 182; Seleek v. Compress Co., 72 Miss. 1024, 17 So. 603; McGowan v. McGowan, 48 Miss. 553; Jones v. Foster, 50 Miss. 47; Guest v. Strahan, 106 Miss. 1, 63 So. 313; Nelms v. Brooks, 105 Miss. 74, 61 So. 985; Roberts v. Burwell, 117 Miss. 451, 78 So. 357; Reese v. Solomon, 99 So. 482.

In Judge Griffith's very admirable work, "Mississippi Chancery Practice," a very thorough discussion of what constitutes multifariousness is laid down, sections 204-06, inclusive.

The bill of complaint in this case sets out that on the first of January, 1923, the complainant gave two deeds of trust and two notes for entirely separate and distinct indebtedness; one to the Tchula Commercial Company, a corporation domiciled and doing business at Tchula, Holmes county, Mississippi; and one to the Merchants' & Planters' Bank, a banking corporation domiciled and doing business at Tchula, Holmes county, Mississippi. It is not alleged or claimed that the Commercial Company was interested in the debt due the bank, nor that the bank was in anywise interested in the debt due the Commercial Company. Nor is it alleged or claimed that the New York Life Insurance Company was in anywise interested in the debts due by complainant to the bank or to the Commercial Company.

Because of this defect in the bill, the judgment of the court below must be reversed and the cause remanded. Clark v. Miller, 105 So. 502.

II. The chancery court of Lauderdale county was without jurisdiction. Griffith's Miss. Ch. Pr., sections 21, 24, 25, 27, 29, 30. Neither the complainant nor the defendants, Tchula Commercial Company and Merchants' & Planters' Bank, were citizens of, resided in, or had any property or business interest in Lauderdale county, Mississippi.

Under Code of 1906, section 707, as amended by Laws of 1908, chapter 166, and Laws of 1918, chapter 149, requiring civil actions to be brought in the county in which the defendants or any of them may be found, but providing that a resident sued out of the county of his residence may have the venue changed, joint actions may be commenced in the county in which either defendant resides, and service on defendant residing in another county is valid and binding. Indianola Cotton Oil Co. v. Crowley, 121 Miss. 262, 83 So. 409.

The above provisions are applicable to courts of equity, so held in Masonic Benefit A. & S. G. L. of M. v. Dodson, 111 Miss. 60, section 687, Code of 1906, having provided that the above section shall apply to chancery courts as well as to circuit courts. The jurisdiction over domestic corporations in chancery courts is, therefore, determined by the jurisdiction over domestic corporations in circuit courts. Plummer-Lewis Co. v. Francher, 111 Miss. 656, 71 So. 907. Following the decision of this case, section 707, Code of 1906 (section 486, Hemingway's Code) was amended.

The bill of complaint does not set up a cause of action which in the slightest degree falls under this amendment; therefore the bill should be dismissed, as these defendants, domestic corporations, have no right to a change of venue under the provisions of the Plummer-Lewis case, supra. See, also, Morrimac Veneer Co. v. McCalip, 92 So. 817.

III. Fraud: No fraud of any kind is alleged in the execution and delivery of these instruments. Neither the title of the bank acquired at trustee's sale, nor the title of the present owners, J. M. Howard and O. W. Nixon, is in anywise attacked for fraud. See section 339, Hemingway's Code (section 579, Code of 1906); House v. Gumble, 78 Miss. 259, 29 So. 71; McNeil v. Lee, 79 Miss. 455, 30 So. 821; Weir v. Jones, 84 Miss. 610, 39 So. 533; McKinney v. Adams, 95 Miss. 832, 50 So. 474; I. O. of S. & D. of J. of A. v. Moncrief, 96 Miss. 419, 50 So. 558; Carpenter v. Douglas, 104 Miss. 74, 61 So. 161.

A defendant charged with fraud may always challenge the sufficiency of complainant's averments thereof; and if the bill does not in fact charge fraud, defendant may demur without interposing an answer. N. U. F. I. Co. v Standard Drug Co., 117 Miss. 429, 78 So. 353; Watts v. Patton, 66 Miss. 54, 5 So. 628; Patton v. Edwards, 29 Miss. 67; Davis v. Davis, 62 Miss. 818; Canton Warehouse Co. v. Potts, 68 Miss. 637; Anderson v. Winston, 5 How. 279; Bell v. Henderson, 6 How. 311; Smith v....