Turner v. Givens
| Decision Date | 09 March 1936 |
| Docket Number | 31948 |
| Citation | 166 So. 367,176 Miss. 214 |
| Court | Mississippi Supreme Court |
| Parties | TURNER et al. v. GIVENS et al |
Suggestion Of Error Overruled April 20, 1936.
APPEAL from chancery court of George county HON. D. M. RUSSELL Chancellor.
Bill by Mrs. A. K. Givens and another against J. Tyler Turner and another. From the decree, the defendants appeal. Reversed and remanded.
Reversed and remanded.
O. F. MOSS, of Lucedale, and J. W. Backstrom, of Leakesville, for appellants.
As we see it, there is only one serious question in this appeal, and that is this: Did the instrument of writing dated March 3, 1926, signed by Carrie Givens Chaudron, Dan R. McInnis and Mrs. A. K. Givens, revive and keep in force the George county deed of trust as additional security that Mrs. Chaudron would comply with the Alabama contract as to the timber and pay for same?
It is true that section 2152 of the Code of 1930 provides that payment of the money secured by any mortgage or deed of trust shall extinguish it and revest the title in the mortgagor as effectually as it reconveyed. We submit frankly to the court that we have been unable to find any Mississippi cases directly in point, but in several cases this court has plowed close to the corn.
The case of Jones v. Hyman Mercantile Company, 134 Miss. 275, 98 So. 845, is possibly our leading case in that connection, which holds that generally a deed of trust is extinguished when the indebtedness secured thereby is paid.
As to the effect of the payment of indebtedness secured by a mortgage, Alabama has a statute, very similar to ours, section 9026, which provides: "The payment of a mortgage debt, where the mortgage is on real or personal property, divests the title passing by the mortgage."
Hammock v. Oakley, 154 So. 906.
Complainants in the present case, appellees here, failed to do or offer to do equity by paying or tendering the amount due appellants, and are therefore seeking equity without offering to do equity. Appellees should have been denied any relief in the court below on this well known equitable principle alone.
The mortgagees in the present case had never given up the original deed of trust. It had not been cancelled of record. Furthermore, the mortgagors, each and every one of them, executed a new agreement in writing dated March 3, 1926, agreeing that this old deed of trust, which had been paid, should stand as security for the payment of the new advances which should be covered by the old instrument at its execution.
So appellees are not only precluded in this case by the principle of he who seeks equity must do equity, but they are precluded by their own written agreement dated March 3, 1926.
It is competent for the parties to a mortgage to agree that it shall stand as security for a different debt or claim than that described in the mortgage, or for a debt subsequently contracted, and when the good faith of the arrangement is not impeached, the mortgage will be valid security for the new debt as between the parties thereto.
A written agreement extending the security need not specifically describe the property, provided it refers to the mortgage and the description in that instrument is full and accurate 41 C. J. 467.
The parties have the right to treat the mortgage as unpaid and as standing as security for future advances, and it will be good for such advances as between themselves and as to all others not prejudiced thereby. So it may be kept alive to secure an indebtedness distinct from that for which it was originally made to secure.
41 C. J. 787; Salvin v. Realty Co., 227 N.Y. 51, 124 N.E. 94, 6 A. L. R. 581.
Our statutes of frauds is not in the way, because the new contract was in writing and signed by the parties charged.
It is competent for the parties to a mortgage to agree that it shall stand as security for a different debt or claim than that described in the mortgage, or for a debt subsequently contracted, and when such an agreement is reduced to writing, and the good faith of the arrangement is not impeached, the mortgage will be a valid security for the new debt.
27 Cyc. 1074; McClure v. Smith, 115 Ga. 709, 42 S.E. 55; Whitney v. Metallic Window Screen Mfg. Co., 187 Mass. 537, 73 N.E. 563.
There is no doubt that a mortgage when paid may be kept alive for other purposes when the rights of creditors and third parties have not intervened.
Salvin v. Myles Realty Co., 6 A. L. R. 581, 227 N.Y. 51, 124 N.E. 94; Hay v. Bramhall, 19 N. J. Equity 563, 97 Am. Dec. 687; James v. Morey, 2 Cow. 246, 14 Am. Dec. 475; Bogert v. Bliss, 148 N.Y. 194, 51 Am. St. Rep. 634, 42 N.E. 582.
It is permissible under the laws of the States of Alabama and Mississippi to have a cash price and a credit price for the same commodity, and the credit price cannot be termed usury.
Baker v. Orr, 53 So. 1006; Bass v. Patterson, 68 Miss. 310, 8 So. 849; Commercial Credit Co. v. Shelton, 139 Miss. 132, 104 So. 75; Commercial Credit Co. v. Tarwater, 110 So. 49, 49 A. L. R. 1437.
The statute of frauds of the state of Alabama prevents the appellees from claiming that the contract was usurious.
If the instrument dated March 3, 1926, did revive and keep alive the deed of trust of March. 1925, the learned chancellor is in error, and this case should be reversed, but, on the other hand, if said instrument did not revive and keep alive, or resuscitate said deed of trust, the lower court was correct, and this case will necessarily be affirmed.
If there were any intervening rights of third parties, creditors or vendees, we would not for a moment argue that this instrument revived the deed of trust, but this is a transaction voluntarily entered into between the parties, and no rights of third parties are effected. This is not an oral agreement to revive a deed of trust, or keep a deed of trust alive, but is a written instrument executed between the parties. It is true that this instrument was not placed of record, neither was the recording of said instrument necessary any more so than it is necessary to record a deed as between vendor and vendee.
There can be no usury in this law suit.
Ford & Ford, of Pascagoula, for appellees.
It is our contention in the first place that when the eleven thousand dollar debt was paid, the trust deed was dead beyond any possibility of resuscitation.
Section 2152, Code of 1930; Jones v. Hyman, 134 Miss. 275.
We contend that this trust deed was dead and no further lien could be created on the land without a new instrument, properly drawn, signed, acknowledged and put of record. Admittedly no such new paper was drawn. The most that could be contended for the informal alleged agreement of March 3rd, was that it might be an equitable mortgage. However, no effort is here made to claim any such equitable mortgage.
There is no pretense that there was even the slightest consideration for this paper, even if it were otherwise valid. It is elementary law that a contract is unenforcible unless supported by a consideration good in law; it is a mere nudum pactum.
Secondly, no one has even intimated that Dan McInnis was present when the trade was made, or consulted about it or had anything to do with it.
This paper is worthless, and yet it is the very foundation of the appellants' claim on the Mississippi property. If the paper is worthless, then appellants were entitled to the decree cancelling the deed of trust.
Devitt v. Foster, 159 Miss. 687; Bancroft v. Martin, 144 Miss. 384.
It seems to be settled in our books that the mortgage must rest upon a valuable consideration, something new or contemporaneous. If it be made to secure a pre-existing debt and there be no change in the evidence of the indebtedness, but the same remains in its original condition, there is no such new motive or consideration.
Schumpert v. Dillard, 55 Miss. 348; Saleeby v. Brown, 190 N.C. 138, 129 S.E. 124; Owens Tie Co. v. Bank of Woodland, 136 Miss. 114.
In the case of Cooledge v. Collum, 110 So. 43, the Supreme Court of Alabama held that usurious interest could not be recovered by an action in assumpsit unless there was an express promise to repay it.
Sections 8563, 8567. Alabama Code; Crowson v. Cody, 96. So. 877; Section 1947, Miss. Code of 1930; Beck v. Tucker, 147 Miss. 401; Brewer v. Canal Bank, 147 Miss. 685; Levy v. Jeffords, 141 Miss. 818.
The facts now before the court in this case make out usury, when considered according to the laws of Alabama or Mississippi.
53 A. L. R. 746; 3 L. R. A. (N. S.) 214; Tiller v. Cleveland. 47 Ark. 287, 1 S.W. 516.
Counsel are unable to dispose of the provisions of section 2152, Code of 1930. providing that payment of the money secured by trust deed shall extinguish the debt and revest title in the mortgagor as effectively as if re-conveyed, nor can they get around the case of Jones v. Hyman, 134 Miss. 275.
Hammock v. Oakley, 154 So. 906.
Argued orally by J. W. Backstrom, for appellant, and by E. J. Ford, for appellee.
Appellees, Mrs. A. K. Givens and D. G. McInnis, filed their bill in the chancery court of George county against appellants, J. Tyler Turner and Horace Turner, to cancel and set aside a trustee's deed made to them as the result of the foreclosure of a mortgage theretofore executed in their favor by appellees and Mrs. Carrie Givens Chaudron, and also to cancel the mortgage, and for an accounting and recovery of alleged usurious interest. The cause was heard on amended bill, answer, and proofs, resulting in a decree canceling the trustee's deed as well as the mortgage. From that decree appellants prosecute this appeal.
On the 12th day of March, 1925,...
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McFarlane v. Plant
...the title in the mortgagor as effectually as if reconveyed." Jones v. Hyman Mercantile Co., 98 So. 845; Turner v. Givens, 166 So. 367. The Turner case quotes from 41 C. J. 787, sec. 895, to the that a mortgage which has been paid may be kept alive for other purposes, "where such is the inte......
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...of trust on the land was still in full force and effect. The appellant cites in support of such contention the case of Turner v. Givens, 176 Miss. 214, 166 So. 367. But in that case there was no dispute that the original deed of trust had been fully paid and satisfied, and the opinion of th......