Weir v. Jones

• Decision Date: 09 May 1904
• Citation: 36 So. 533,84 Miss. 602
• Court: Mississippi Supreme Court
• Parties: RICHARD S. WEIR v. ANN J. JONES ET AL

36 So. 533

84 Miss. 602

RICHARD S. WEIR v. ANN J. JONES ET AL

Supreme Court of Mississippi

May 9, 1904

March 1904

FROM the chancery court of, second district, Carroll county. HON ADAM M. BYRD, Chancellor.

Jones and another, appellees, were complainants, and Weir appellant, was defendant in the court below. From a decree in complainants' favor the defendant appealed to the supreme court. The opinion states the case.

Decree reversed, demurrer sustained and case remanded.

Alexander & Alexander, and J. N. Flowers, for appellant.

[The briefs of counsel for appellant were lost from the record before it reached the reporter.]

Brame &amp Brame, and J. S. Smith, for appellees.

The whole gravamen of the bill is that the defendant, Weir, through fraudulent conduct and a breach of trust, secured the legal title to the land, and a demurrer will not lie to such a bill. The defendant in answering the averments of fraud and misconduct would have to answer the entire bill. Having done this, he could not demur, because a defendant cannot answer and demur at the same time. He may demur to a part of the bill and answer a part, but the answer and demurrer must refer to separate and distinct parts. He cannot answer the whole bill and then demur, because the answer necessarily waives or overrules his demurrer. Fall v. Hafter, 40 Miss. 606; Hentz v. Bank, 76 Miss. 429; Sledge v. Dixon, 81 Miss. 501.

In Hentz v. Bank, this court states the rule which we think applicable to this case in the following language: "It is well settled, of course, in this state, that when a bill charges fraud that is material and which, if true, entitles to relief, the respondent should answer, denying the fraud. He may then demur, if the demurrer be limited to other separate and distinct parts of the bill, setting up equitable grounds for relief disconnected from the fraud."

Disconnected from the fraud and breach of trust in this case, there is nothing for the demurrer to reach; therefore, manifestly, it was properly overruled.

We beg to call the especial attention of the court to the fact that the bill charges that the reason the land was sold was because of the failure of the complainants to make to the mortgage company the payment due for the year 1901. This is recited in the deed from the trustee, and yet this is the very payment that the trustee, Flowers, refused to accept. Thus showing that the fraudulent trust deed or mortgage obtained by the defendant, Weir, from the complainant under the peculiar circumstances alleged in the bill would naturally affect the sale of the property under the trust deed of the mortgage company, the bill alleges that the trustee himself stated that it would be useless for the complainants to make the payment due the mortgage company, because the defendant, Weir, would, notwithstanding this, sell the property under his mortgage.

Even if there had been no collusion between the trustee of the mortgage company and the defendant, Weir, the fact that the defendant, Weir, had tied up the property of the complainants by securing a mortgage thereon for a large amount which represented a fictitious and fraudulent debt, when he knew that this was the only property or means that the complainants owned, would be in itself sufficient to authorize a court of equity to set aside the sale, especially in view of the inadequacy of the price and the fact that the defendant, Weir, was himself the purchaser in violation of his trust.

It will be borne in mind that the rights of no third persons are involved and that the question is one addressed to the conscience of the court as to the right of the defendant to hold the advantage he has wrongfully and unjustly obtained as against the complainants--that is, whether he shall be allowed to hold this valuable plantation for $ 1,287.76, when it appears that one hundred acres of land, less than one-fifth of the whole, could have been and would have been sold for $ 1,250 but for his interference.

The agency or trust of the defendant, Weir, was voluntarily assumed by him. He was under no obligation to assume it. He was not called upon to look after the interest of complainants; and, notwithstanding their misfortune, if he had dealt with them at arm's length and had purchased at a fair sale, made under the trust deed of the mortgage company, he would occupy a very different position before the court. But he undertook certain obligations, from which he could not recede in order to advance his own interest at the sacrifice of those which he had undertaken to safeguard on behalf of complainants. Although he may have intended at the outset to aid the complainants, yet he did not assume this trust through motives of disinterested philanthropy or charity. He desired to realize the profit which there would be on the trade of the tenants on the plantation. It was no doubt a source of great profit for him to supply them, and this consideration no doubt influenced him at first; but afterwards, as matters progressed and when misfortunes had overtaken the complainants, he conceived the design of securing a title to the plantation, and this temptation was so great that he yielded to it, although it involved a breach of trust and a violation of his express agreement to aid the complainants in protecting this very property.

The inquiry suggests itself, Why did not the defendant undertake to sell the property under his own mortgage? The answer is manifest: Being the mortgagee, although with a power of sale, he could not purchase at his own sale. Houston v. Building Associations, 80 Miss. 31.

The fact, however, that he could not become the purchaser at his own sale afforded no reason why he should not sell the property under his mortgage, and let others buy. The very fact that he failed to do this indicates two things: First, that he desired to become the owner of the property himself; and second, that he did not wish to go into a court of equity to foreclose his mortgage. Therefore, he set about procuring the foreclosure of the trust deed of the mortgage company in order that he might purchase thereunder, at the same time holding his own fraudulent mortgage on the record and in the eyes of the public to cover up the equity of redemption and thereby prevent others from bidding at the sale under the trust deed of the mortgage company. It is expressly charged in the bill that this was his purpose and that the purpose succeeded, and this fact is also admitted by the demurrer.

Argued orally by C. H. Alexander, for appellant.

OPINION

TRULY, J.

No principle of equity jurisprudence is more firmly established than that, where fraud is relied on as a basis of relief sought from a chancery court, the facts of which the charge of fraud is predicated must be specifically...