Whitney Nat. Bank v. Stirling, 32417

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtAnderson, J.
Citation177 Miss. 325,170 So. 692
PartiesWHITNEY NAT. BANK v. STIRLING et al
Docket Number32417
Decision Date23 November 1936

170 So. 692

177 Miss. 325

WHITNEY NAT. BANK
v.
STIRLING et al

No. 32417

Supreme Court of Mississippi

November 23, 1936


Division B

Suggestion Of Error Overruled January 4, 1937.

APPEAL from the chancery court of Hinds county, HON. V. J. STRICKER, Chancellor.

Suit by the Whitney National Bank against J. B. Stirling and others. From a decree in favor of defendants, the plaintiff appeals. Affirmed.

Affirmed.

[177 Miss. 326] Green, Green & Jackson, for appellant.

The chancellor erroneously dismissed the bill and denied appellant the right to cross-examine adverse parties under section 1549, Code of 1930, as to separate property severally owned, subject to appellant's judgment lien.

4 Wigmore, sec. 2227; Stirling v. Whitney Natl. Bank, 170 Miss. 674, 150 So. 654; Sections 1063, 1549, 1550, [177 Miss. 327] 1528, 1527, Code of 1930; Sections 94 and 159(a) and (f), Constitution; Virden v. Dwyer, 78 Miss. 763, 30 So. 45; Griffith's Chancery Practice, secs. 24, 500; Horb v. Hurwitz, 231 P. 1116; Frankenthal v. Solomonson, 55 P. 754; Rankin v. Taylor, 214 N.W. 625; Churchill & Alden Co. v. Ramsey, 172 N.W. 779; Jacobsen v. Andrews, 189 N.W. 114; Metler's Adm. v. Metler, 18 N.J.Eq. 277; 4 Wigmore (2 Ed.), sec 2228; 5 Wigmore (2 Ed.), secs. 2285, 2334; 1 Wigmore (2 Ed.), page 1032; Picard v. Clancy, 113 N.E. 838; Stalcup v. Jepsen, 224 N.W. 16; Farmers' & Merchants' State Bank v. Moore, 206 P. 907; Strauss v. Hudson, 104 Miss. 637, 61 So. 594; Leach v. Shelby, 58 Miss. 688; Byrd v. State, 57 Miss. 243; Lockhart v. Luker, 36 Miss. 68; Dunlap v. Hearn, 37 Miss. 471; Stuhlmuller v. Ewing, 38 Miss. 447; Aveson v. Kinnaird, 6 East. (New Ed.), 356; Saffold v. Horn, 72 Miss. 470; Barry v. Sturdivant, 53 Miss. 493; Rushing v. Rushing, 52 Miss. 330; Hedges v. Aydlett, 46 Miss. 107; Ellis v. Alford, 64 Miss. 8; Turner v. State, 60 Miss. 351; Hanover Natl. Bank v. Klein, 64 Miss. 141; Solomon v. Smith, 58 Miss. 408.

Stirling being agent for his wife must account in court thereasto and the privilege is waived.

Sections 1943, 1944, 1945, Code of 1930; Rivers v. Eastman Cotton Oil Co., 159 Miss. 449, 132 So. 328; 4 Wigmore on Evidence (2 Ed.), sec. 2232; Robison v. Robison, 44 Ala. 234; Bach v. Parmely, 35 Wis. 240; Baldassare v. Fed. Union Life Ins. Co., 268. Ill.App. 243; 5 Modern Law Evidence, Chamberlayne, page 5221, sec. 3658; 70 C. J. 133; 28 R. C. L. 561; 40 Cyc. 2377; 5 Wigmore on Evidence, sec. 2311; Nebham v. Mansour, 162 Miss. 48, 139 So. 167, 578; Southwest Metals Co. v. Gomez, 4 F.2d 215, 39 A.L.R. 1416; Coca Cola Bot. Wks. v. Simpson, 158 Miss. 390, 130 So. 479; Billingsley v. Gulick, 256 Mich. 606, 240 N.W. 46, 79 A.L.R. 166.; Epstein v. Penn. R. Co., 250 Mo. 1, 156 S.W. 699, 48 L.R.A. (N.S.) 394; Natl. Life & Acc. Ins. Co. v. Bell, [177 Miss. 328] 291 P. 106; Okla. Pro. Assn. v. Montgomery, 16 P.2d 135; Stalker v. Breeze, 114 N.E. 968; Pittsburgh, etc., R. Co. v. O'Connor, 171 Ind. 686, 85 N.E. 969; 1 Greenleaf on Evidence (16 Ed.), sec. 247a; 4 Columbia Law Review, Art. R. W. Purrington, 388; 48 L.R.A. (N.S.) 395; 5 Jones Commentaries (Rev. & Enlarged), sec. 2197; Rosser v. Peases, 37 Okla. 222, 131 P. 534; McDonnell v. Montieth, 231 N.W. 854; Lazzell v. Harvey, 49 P.2d 519.

That thus at issue is when appellee, Mrs. Stirling, constituted her husband a general agent for the transaction of her business, did she not waive this statute for it is impossible for business to be carried on unless she so did? Having waived, by the appointment of her husband, he in his testimony claimed as her agent and was testifying for her that which he held on her account and not against her, being estopped by his agency to dispute her title.

In order to avail themselves of this statute it is necessary that the consultations be confidential. Therefore, if they take place in the presence of a third person, the relationship is not confidential and is not entitled to the protection of the rule. The very nature of the transaction and the circumstances surrounding it, are inconsistent with the idea that the consultations were intended to be confidential.

28 R. C. L. 561; 40 Cyc. 2377; 5 Wigmore on Evidence, sec. 2311; Nebham v. Mansour, 162 Miss. 48, 139 So. 167, 139 So. 578.

Herein the banks were taken into the confidence as to property acquired, income received, disposition made, and that concealed is alone the amount realized therefrom.

Southwest Metals Co. v. Gomez, 4 F.2d 215, 39 A.L.R. 1416; Coca Cola Bottling Works v. Simpson, 158 Miss. 390, 130 So. 479.

[177 Miss. 329] Prior to the trial appellees made a voluntary election to utilize the banks as agents for acquisition, transfer, disposition. So having done, the Stirlings are estopped from allowing full development as to how much money they have on hand.

Billingsley v. Gulick, 256 Mich. 606, 240 N.W. 46, 79 A.L.R. 166; Epstein v. Pennsylvania R. Co., 250 Mo. 1, 156 S.W. 699, 47 L. R.A. (N.S.) 394; Natl. Life & Acc. Ins. Co. v. Bell, 291 P. 106; 40 Cyc. 2405; Herpolsheimer v. Citizens Ins. Co., 79 Neb. 685, 113 N.W. 152; Okla. Prot. Assn. v. Montgomery, 16 P.2d 135; Stalker v. Breeze, 114 N.E. 968; Pittsburgh, etc., R. Co. v. O'Connor, 171 Ind. 686, 85 N.E. 969; 1 Greenleaf on Evidence (16 Ed.), sec. 247a; 4 Columbia Law Review, Art. R. W. Purrington 388; 4 Wigmore, Evidence, sec. 2388; 5 Jones Commentaries, sec. 2197; Rosser v. Peases, 37 Okla. 222, 131 P. 534; McDonnell v. Montieth, 231 N.W. 854; Lazzell v. Harvey, 49 P.2d 519.

If section 1528 thus construed, it violates the Fourteenth Amendment. Herein it is now held by the court, assuming the foregoing points decided against us, that with a judgment against Stirling and Mrs. Stirling, with each having in their respective possessions money privately owned, derived from transactions which were passed through a bank, that this statute precludes the utilization of them as witnesses.

Metropolitan Cas. Co. v. Brownell, 294 U.S. 583, 79 L.Ed. 1072; Yazoo, etc., R. Co. v. Decker, 150. Miss. 621, 116 So. 287; Alford v. U.S. 282 U.S. 691, 75 L.Ed. 625; Funk v. U.S. 290 U.S. 371, 78 L.Ed. 369; Brown v. Walker, 161 U.S. 821, 40 L.Ed. 597; Western, etc., R. Co. v. Henderson, 279 U.S. 639, 73 L.Ed. 884; Manley v. Georgia, 279 U.S. 1, 49 S.Ct. 215.

The sole predicate for the validity of this statute was the secrecy of the relation, but when that secrecy has been bared voluntarily in accordance with the terms of [177 Miss. 330] the statute, the statute may not then be utilized as an instrumentality to defraud.

Mayflower Farms v. Ten Eyck, 80 L.Ed. 477.

Herein, appellee has voluntarily made a full disclosure, utilizing his position as a witness. Having so thus done, is there then, as between this appellee so having done and appellant, such a basis for discrimination as would allow appellee to suppress the true facts revealing the secret to defraud appellant who was by appellee's false statement led not to cross-examine.

Metropolitan, etc., Co. v. Brownell, 294 U.S. 583, 79 L.Ed. 1072; Power Mfg. Co. v. Saunders, 274 U.S. 490, 71 L.Ed. 1165; Kentucky Finance Corp. v. Paramount, 262 U.S. 444, 67 L.Ed. 1112; Hanover F. Ins. Co. v. Harding, 272 U.S. 494, 71 L.Ed. 372; Sandford v. Dixie Const. Co., 157 Miss. 626, 128 So. 887.

The bill specifically shows ownership of furniture in excess of the statutory exemption. The bill avers this transfer to Sweitzer. Sweitzer shows, however, that he did not take possession thereof, but left said possession with appellees, etc., with this admitted asset subject to this lien, the bill was dismissed. Therein was error.

Herein, the averment of the bill not denied, showed the resident to have been worth approximately thirty thousand dollars conservatively. This property was obviously of a value in excess of the debt against it, and so being, should have been offered for sale pursuant to the proof herein and thereasto the chancellor was in error.

Sweitzer knew the property was thought then to be worth thirty-five thousand dollars to forty thousand dollars.

While mere inadequacy in price is not necessarily evidence of fraud, very gross inadequacy may be so under certain circumstances.

Foster v. Pugh, 20 Miss. 416; 27 C. J. 484.

This trade was not "in the usual course of business." Herein, Stirling, the president of the First National [177 Miss. 331] Bank, then about to fail, offered to sell to a friend, residing with him, at a specified sum. There was no negotiation by Sweitzer seeking to reduce the price, but he forthwith took it at that which it was offered.

27 C. J. 489.

The evidence of large indebtedness is an important element in marshaling badges of fraud to overturn fraudulent conveyances.

27 C. J. 492.

Retention of possession is likewise a badge.

27 C. J. 494.

However, a transfer between near relatives may in connection with other circumstances carry a suggestion of fraud, or even furnish satisfactory proof of fraud. Transfer to Sweitzer who had no apparent use for the property is a badge of fraud.

J. Morgan Stevens and J. M. Stevens, Jr., both of Jackson, for appellee, Charles McGregor Sweitzer.

A bill to set aside a fraudulent conveyance must not only charge fraud in specific terms but the burden of proof is upon the complainant to make out a case by evidence positive and unequivocal. No presumptions are to be indulged in.

Mississippi Chancery Practice, Griffith, pars. 501, 502, 589.

The bill and the proof shows that the North State street property constituted the exempt homestead of Mr. and Mrs. Stirling at the time it was conveyed, and complainants hold no legal or equitable right to have it upset.

Zurosky v. McIntyre, 93 Miss. 806, 47 So. 435; Orgill Bros. v. Gee, 152 Miss. 590, 120 So. 737; Miers v. Miers, 160 Miss. 746, 153 So. 133; Hodges v. Pickett, 67 Miss. 715; Willoughby v. Pope, 85 So. 705. [177 Miss. 332]

The final decree appealed from is upon the pleadings and the facts...

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4 cases
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    • United States
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