West v. Union Naval Stores Co.
| Decision Date | 04 February 1918 |
| Docket Number | 19927 |
| Citation | 116 Miss. 743,77 So. 609 |
| Court | Mississippi Supreme Court |
| Parties | WEST v. UNION NAVAL STORES CO |
APPEAL from the chancery court of Wayne county, HON. W. M. DENNY Chancellor.
Suit by John I. West, Jr., against the Union Naval Stores, Company. From a decree for complainant, defendant appeals.
The facts are fully stated in the opinion of the court.
Decree reversed.
Baskin & Wilbourne, for appellant.
We have given the pages of the record in this brief, showing what transfers were made and where they were made, and the refusal of the original trustee to act, and the appointment of a substituted trustee. All of these are indisputably manifested by the record.
We are therefore, at a loss to know, with these entries on the record where the deed of trust was recorded, how the chancellor could enter a decree that Gray as substituted trustee, had no right to sell said property, and therefore the title of the appellant was not good.
Section 2794 of the Code of 1906, of Mississippi, provides that transfers of a record debt are to be noted on the record. Section 2795 of the Code of 1906, of Mississippi, provides that the assignment of debts is to be marked on the record. And section 2773 of the Code of 1906 of Mississippi provides that the substitution of trustees must appear of record.
When the court turns to page 64 of the record, it will find that the transfer is manifest of record, of date October 20, 1908 long prior to the taking of the appellee's deed of trust in this case. It will find also the refusal of the original trustee to act, and this is manifest by the record and that the appointment of A. H. Gray, as substituted trustee, is also manifest of record.
In another place, as above stated in this brief, the record manifests the transfer and assignment of the debt, refusal of the original trustee to act, and the appointment of a substituted trustee. Therefore, we submit that the above quoted sections of the statute have been literally complied with, and that the learned court below manifestly erred in making said decree.
The deed of trust of date the 13th of February, 1907, under which appellant claims title, one copy of which is found on pages 87 and 88 of the record, expressly provides that the beneficiary in the said deed of trust, its successors or assigns, may appoint another trustee. So that by the very terms of the deed of trust, the assignee Fagan had a right to appoint a substituted trustee, and the sale in this instance was made by said substituted trustee in strict accordance and conformity to the provisions of the said deed of trust and the law pertaining to foreclosure of the same.
It cannot be successfully contended, we submit that this appellant was in any wise estopped because of the filing of the bill by the Union Naval Stores Company to foreclose its second deed of trust of date November 5, 1910, which bill was filed in December, 1912, for the reason that there was no attack made on the deed of trust of date February 13, 1907, under which appellant claims, and, therefore, no adjudication was made which would estop the appellant from claiming title under the deed of trust of February 13, 1907.
The rule of res adjudicata or former recovery is confined to those cases where the parties to the suits are the same, the subject-matter the same, the identical point is directly in issue and judgment has been rendered on that point. McCall v. Jones, 72 Ala. 371.
Our own court, speaking through Judge CAMPBELL, in the case of Hubbard v. Flynt, 58 Miss. 266, as we submit, conclusively shows that there was no res adjudicata in this suit. As the question was not presented by the pleadings, and as Judge CAMPBELL says: "and, therefore, could not have been adjudicated." "The mere fact that it may have been introduced in the suit if the complainant had chosen to do so, does not make such matters res adjudicata."
There is a distinction between this and the matter involved in the record in a former case, and which being so involved might have been litigated and decided, and which is held to be a matter adjudicated, because it might have been. Davis v. Davis, 65 Miss. 503.
We merely call the court's attention to this last question of res adjudicata and these authorities, because there is something said about it in the answer and cross-bill of the complainant on this subject, but we presume that the able counsel who represented the appellee, and who filed said pleadings, as well as the learned chancellor, conceived that there was nothing in this proposition, as the chancellor's decree is based on the fact that the appellant obtained no title through the deed of A. H. Gray, substituted trustee, and hence the reliance upon the right to a decree in the lower court was based solely on the failure of title because of the foreclosure proceeding of the substituted trustee.
In view of the undisputed facts, shown by this record, we respectfully submit that the decree of the lower court should be reversed, and a decree entered for appellants in this court.
White & Ford, for appellee.
The position of appellee in this case is that the deed of trust given it by John I. West, Sr., and wife, Nancy West, was perfectly valid and that the foreclosure proceeding in the chancery court resulting in the purchase of the land by appellee, confers on it a good and perfect title to the land. It must be admitted that the deed of trust given the Bank of Waynesboro, by the same grantors was prior in point of time to that given the Union Naval Stores Company, and it must be admitted further that the same was placed of record in the land records of Wayne county, prior to the deed of trust to the Union Naval Stores Company. We insist, however, that the assignment of the deed of trust by the Bank of Waynesboro to R. W. Fagan & Company, the refusal of the trustee to act, the appointment of a substituted trustee, and the sale by him were absolutely void, and therefore appellant would acquire no title under the purchase, at the substituted trustee's sale. No question is raised as to the validity of the deed of trust given the Union Naval Stores Company, or the regularity of the proceeding by which it was foreclosed, nor as to appellant's purchase at the commissioner's sale. We shall confine our presentation of this matter therefore to the transactions affecting the deed of trust to the Bank of Waynesboro.
We shall deal first with the transfer of the deed of trust to R. W. Fagan & Company by E. F. Ballard.
We submit that this instrument has no symptom of a legal document. It will be noted that no consideration for the transfer is recited in the instrument; the instrument itself does not identify what is to be transferred as a matter of fact, the paper is not signed, and although it purports to be the act of the Bank of Waynesboro, a corporation, the corporate seal is not attached. Furthermore the court will observe that the acknowledgment is entirely irregular, in that the grantor merely purports to have acknowledged that he signed and delivered the transfer. Nothing is said as to it being the act of the corporation, which E. F. Ballard was supposed to be representing as vice-president. This paper was certainly not entitled to be recorded among the land records of Wayne county under the law. The court will bear in mind further that this writing appears on the back of the original deed of trust, and is not written on a separate piece of paper. It will be noted further that the body of the transfer appears written in long hand on the back of the original deed of trust, but the acknowledgment is on a printed form written on a separate slip of paper and attached merely to the back of the original deed of trust where various other matters appear. We do not think it would be seriously contended that such a document would be sufficient to transfer the legal title to the deed of trust, and certainly it is not entitled to be recorded.
We invite the attention of the court to chapter 74 of the Code of 1906, and especially section 2793 thereof.
Now, it will be noted in this connection that the acknowledgment was insufficient in that it was not attached to the instrument which purported to make the transfer at all but was written on a slip of paper attached to the original deed of trust, on the back of which the body of the transfer assignment was written. It will be noted further that the acknowledgment is not in the form provided by section 2799 of the Code. We think therefore, that this document was not entitled to be recorded, and after being recorded did not constitute notice to any encumbrancer or creditor for a valuable consideration. Under the provisions of section 2794, of the Code, any assignment of a mortgage or deed of trust, or other lien of record, shall be made by the creditor, by entering on the margin of the record the fact of the assignment and in default of making such entry, any satisfaction or cancellation of the lien or instrument evidencing it entered by the original creditor, shall release the same as to subsequent creditors and purchasers, for value without notice unless the assignment be by writing duly acknowledged and filed for record. Under the provisions of this section, one of two things is necessary to-wit: Either...
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