Thompson v. Wilson
| Decision Date | 08 April 1935 |
| Docket Number | 31679 |
| Citation | 160 So. 388,172 Miss. 766 |
| Court | Mississippi Supreme Court |
| Parties | Thompson v. Wilson |
(Division B.) ON MOTION TO CONSOLIDATE APPEAL.
1. APPEAL AND ERROR.
Right of appeal from final decree is absolute, and no court order is necessary for that purpose (Code 1930, section 18).
2. APPEAL AKD ERROR.
Appeals by assignee of payee of note from decree directing that collateral security given for payment of note be returned to makers, on one of which assignee gave cost bond alone and on the other of which he gave supersedeas bond, were consolidated and collateral security was ordered returned to assignee subject to control of chancery court by future decree, whether decree appealed from was final or was interlocutory (Code 1930, sections 13, 14).
ON THE MERITS. ( Suggestion of Error Overruled June 3, 1935. [161 So. 153. No. 31679.]
1. TRUSTS. Where trust agreement, whereby beneficiaries under will of deceased officer of insolvent bank agreed to pay bank's claims against dceased's estate, provided that regardless of anything stipulated in agreement, promissory notes, or trust deed, so long as aggregate average annual payment on notes should amount to a minimum of twenty-five thousand dollars, then no default should be declared agreement held to mean that there should be no default so long as twenty-five thousand dollars per year was paid notwithstanding some notes were due under their terms, as against contention that minimum payment was to be applied in discharge of principal indebtedness and was not to include accrued interest payments. 2. TRUSTS. Trust agreement must be construed by taking all of its terms and situations of parties under which it was made into consideration.
HON. E E. JACKSON, Chancellor.
Suit by G. A. Wilson and others against L. K. Thompson, trustee, and another. From the decree, L. K. Thompson, trustee, and another appealed, giving a cost bond alone, and also appealed therefrom giving a supersedeas bond. On motion to consolidate the appeals. Motion sustained. Affirmed on merits.
Green, Green & Jackson, of Jackson, Herbert Ganna way, of Memphis, Tenn., and Shands, Elmore, Hallam & Causey, of Cleveland, for appellants.
The decree of December 27th was interlocutory, not final.
Butler v. Furr, 152 So. 278, 168 Miss. 884; Levy v. Russell, 33 So. 651, 82 Miss. 68; Sowell v. Sowell, 101 Miss. 623, 57 So. 626; Sweatman v. Dean, 86 Miss. 641, 38 So. 231; Beeks v. Rye, 27 So. 636, 77 Miss. 358; Sections 13 and 14, Code of 1930; Griffith's Chancery Practice, page 683; Comans v. Tapley, 101 Miss. 219, 57 So. 567.
If appellant had appealed without obtaining an order as from a final decree and had misjudged, then upon motion this appeal would have been dismissed if this court conceived the decree to be interlocutory, On the contrary, if it appealed as from a final decree and this court determined that the decree was interlocutory, it would have been forthwith dismissed. So that confronted by the complexities and having the vital interests of its client in mind, the path of security required that the two bonds be given and two appeals he had, so that with safety the rights might be preserved and that now asked is merely that the supersedeas be made operative in. both aspects due to the enormous cost of a bond of this kind. Thereto we can see no sufficient reason why it should not be done.
Pending the appeal, with the executors in possession of the stock released from the lien with the right of disposition specifically vouchsafed, appellants' rights are imperiled.
Sections 13 and 14, Code of 1930; Griffith's Chancery Practice, sec. 690, page 812; Belzoni Land Co. v. Robertson, 87 So. 671, 125 Miss. 338; 3 Bouvier's Law Dictionary; 3 C. J. 1315.
Notwithstanding the supersedeas herein granted, there has been created this preferred stock to the extent of two hundred fifty thousand dollars, thereby to that extent depreciating the value of the common stock and the aliquot portion of this preferred stock has not been delivered to the trustee expressly appointed by the instrument for its custody. The result will be that if appellant is successful, that no profit will to it come from having a decree rendered in this court in its favor for the subject-matter of the litigation may thus have been disposed of pending the appeal.
The chancellor improperly released to the executors six hundred fifteen shares of Greenwood Stock.
58 C. J. 1161; Section 3442, Code of 1930; 15 U.S.C. A., sec. 18, Clayton Act; Allendale Heights v. Eyrich, 125 So. 706; Calumet Co. v. Oil City Corp., 154 So. 141; Union & Planters' Bank & Tr. Co. v. Corley, 133 So. 238, 161 Miss. 282; Alabama Water Co. v. Anniston, 151 So. 461; Swalm v. Gill, 118 So. 446, 151 Miss. 630; Hester v. Hooker, 7 S. & M. 768; Fowler v. Nunnery, 89 So. 156, 126 Miss. 510; Chambers v. Davis. 91 So. 346, 128 Miss. 613, 22 A. L. E. 114; Ellman v. Herndon, 71 Miss. 823, 15 So. 135; Beaver v. Crump, 76 Miss. 34, 23 So. 432; Atkinson v. Whitney, 7 So. 646. 67 Miss. 655; Daniel v. Frazer, 40 Miss. 507; Yazoo, etc., R. R. Co. v. Payne, 93 Miss. 50, 46 So. 405; Johnson v. Jackson, 27 Miss. 498; Wilburn v. Bishop, 62 Miss. 341; Marquez v. Caldwell, 48 Miss. 23; Sims v. Lumber Co., 96 Miss. 449, 51 So. 459; Lewis v. Woods, 4 How. 86, 34 Am. Dec. 110; McCorkle v. Brannon, 9 S. & M. 167.
A bill by a vendor for specific performance will not be maintained unless there has been an offer to perform on the part of complainant.
McAlister v. Moye, 30 Miss. 258; Eckford v. Halbert, 30 Miss. 273; Klyce v. Boyles, 37 Miss. 524; Moon v. Wilkerson, 47 Miss. 633; Byrd v. McLaurin, 4 S. & M. 50; Stewart v. Railroad Co., 7 S. & M. 568.
The bond herein filed for two hundred one thousand dollars complies with the statute.
Property is under judicial custody and no bond requisite for supersedeas appeal, save insofar as damages and costs were concerned.
Aetna Ins. Co. v. Robinson, 90 So. 120, 127 Miss. 440; White v. Williams, 132 So. 573, 159 Miss. 732, 76 A. L. R. 755; White v. Miller, 133 So. 146. 160 Miss. 734; Gully v. Jackson International Co., 145 So. 905, 165 Miss. 103.
Under the statute the fixation of the amount of the bond, even if as at double the value, is proper.
Dayton Power & Light Co. v. Commission, 292 U.S. 290, 78 L.Ed. 1267; Humphreys County v. Cashin, 90 So. 888, 892, 120 Miss. 236; Brown v. Franklin, 145 So. 792, 166 Miss. 899; Johnson v. Howard, 141. So. 573, 167 Miss. 475.
Admitting initially, for argument's sake, right to release at all, the chancellor erred thereasto: (a) because he disregarded accrued interest; (b) because he completely ignored potential interest accruals; (c) utilization of inventory valuation of 1930 not competent basis for exercise of right; (d) requirement of proportional release ignored.
Bank v. Noel, 92 Mich. 348, 52 N.W. 727; 1 Jones on Mortgages (3 Ed.), 92.
There was no real disagreement between the parties as to the release, but only an unauthorized cancellation of individual responsibility sought to be exacted by the appellee.
Dayton Power & Light Co. v. Commission, 292 U.S. 290, 78 L.Ed. 1267.
The chancellor denied fundamental rights in directing the residue after sale to be paid to the heirs, instead of being applied upon the debts.
1 Jones on Mortgages (7 Ed.), sec. 79; Marine Nat. Exch. Bank v. Kalt-Zimmers Mfg. Co., 79 L.Ed. 210; Chrisman v. Hay, 43 F. 555; 2 Jones on Mortgages (7 Ed.), sec. 981; Reed v. Jones, 133 Mass. 116, 121; Muren v Southern Coal & Mining Co., 160 S.W. 835, 836; Noble v. European Lfg. & Inv. Corp., 165 A. 157, 159; Fleming v. Fairmount R. R., 49 L. R. A. (N. S.) 155, 79 S.E. 826; Tanner v. Hicks, 4 S. & M. 294; Lindsey v. Bates, 42 Miss. 395; Cabbert v. Wallace, 66 Miss. 618, 5 So. 394.
Assuming parties entitled to release, the release granted is not in accordance therewith, with the power.
The debt is not well secured.
1 B. T. A. 882; Robinson v. McShane, 140 So. 726, 166 Miss. 623; 14 C. J. 850; Fletcher on Corporations, sec. 5382.
Appellees being in default, as to principal and interest, not entitled to insist upon a specific performance of the covenant as to release.
58 C. J. 1161; Allendale Heights v. Eyrich, 125 So. 706; Calumet Co. v. Oil City Corp., 154 So. 141; Union & Planters' Bank & Tr. Co. v. Corley, 133 So. 238, 161 Miss. 282; Alabama Water Co. v. Anniston, 151 So. 461; Swalm v. Gill, 118 So. 446, 151 Miss. 630.
This contract is not susceptible of specific performance.
Hester v. Hooker, 7 S. & M. 768; Fowler v. Nunnery, 89 So. 156, 126 Miss. 510; Chambers v. Davis, 91 So. 346, 128 Miss. 613, 22 A. L. R. 114; Atkinson v. Whitney, 7 So. 646, 67 Miss. 655; Daniel v. Frazer, 40 Miss. 507; Yazoo, etc., R. Co. v. Payne, 93 Miss. 50, 46 So. 405; Johnson v. Jackson, 27 Miss. 498; Wilburn v. Bishop, 62 Miss. 341; Marqueze v. Caldwell, 48 Miss. 23; Sims v. Lumber Co., 96 Miss. 449, 51 So. 459; Lewis v. Woods, 4 How. 86, 34 Am. Dec. 110; MeCorkle v. Brannon, 9 S. & M. 167; McAlister v. Moye, 30 Miss. 258; Eckford v. Halbert, 30 Miss. 273; Klyce v. Boyles, 37 Miss. 524; Moon v. Wilkerson, 47 Miss. 633; Byrd v. MeLaurin, 4 S. & M. 50; Stewart v. Railroad Co., 7 S. & M. 568.
The chancellor erred in refusing appellants' request for a construction of the so-called private agreement and refusing to decide whether appellants should be bound thereby and to what extent.
The court erred in riot specifically directing- that any amounts paid by the executors upon the twelve thousand dollars judgment rendered in favor of Mrs. Yandell should be applied upon her past due indebtedness due appellants. Alfred Stoner, of Greenwood, for appellee.
We submit that the chancellor did not reserve the right to alter or modify the decree at some future time,...
To continue reading
Request your trial