Williams v. Simpson
| Decision Date | 28 April 1892 |
| Citation | 11 So. 689,70 Miss. 113 |
| Court | Mississippi Supreme Court |
| Parties | F. W. WILLIAMS v. S. J. SIMPSON |
October 1892
FROM the circuit court of Bolivar county, HON. R. W. WILLIAMSON Judge.
Action of unlawful detainer by Simpson against Williams for the possession of certain land in Bolivar county, Mississippi. Simpson was a merchant at Duncan, in said county, and, as such, furnished Williams money and merchandise during the years 1888 and 1889. On February 17, 1889, he owed Simpson a balance on account of the dealings for the former year, and gave a trust-deed on the land in controversy to secure this together with certain advances to be made during the year 1890. As a part of the amount for which the land in controversy was sold under the trust-deed, there was a note of Williams' to the Louisville, New Orleans and Texas Railway Company, being for the purchase-money of the land advanced by Simpson, and also an indebtedness due by Williams for a lot of cotton. There being a balance due of the secured debt, the land was sold under the trust-deed April 6, 1891, and was bought in by Simpson, who received a deed from the trustee, and brought this suit to recover possession. Judgment was rendered in his favor, and the defendant appealed to the circuit court, where plaintiff again prevailed, and the defendant appealed to this court.
In the court below, the defendant, among other things, defended upon the ground that the plaintiff had not paid a. sufficient privilege tax as a merchant during the years 1888, 1889 and 1890. On objection, the evidence offered by defendant as to this was excluded.
It was shown that the defendant was present at the trustee's sale, and made no objection thereto.
The opinion contains a further statement of the case.
Section 585, code 1880, levies a privilege tax on merchants and others, and § 589 provides that "all contracts made with any person who shall violate this act in reference to the business carried on in disregard of this law, shall be null and void, so far only as such person may base any claim upon them; and no suit shall be maintainable in favor of such person on any such contract."
Reversed and remanded.
Butt & Butt, for appellant.
The court erred in its ruling as to the privilege tax. By the express terms of the statute, all contracts in reference to the business carried on in disregard of it are void, and no suit can be maintained thereon. Code 1880, § 589. The trust-deed being void, the sale under it conveyed no title. Bowdre v. Carter, 64 Miss. 221; Pollard v. Insurance Co., 63 Ib., 244. See also Parchman v. McKinney, 12 Smed. & M., 631. This case is unlike Dean v. Robertson, 64 Miss. 195, and Hamilton v. Halpin, 68 Ib. In each of those cases the debtor was the actor seeking relief. Here the attitude of the parties is reversed. As the creditor bought, he cannot occupy the position of an innocent purchaser.
J. W. & W. D. Cutrer, for appellee.
1. Appellant having stood by and suffered the property sold without protest, is estopped to deny the validity of the sale.
2. The defense as to the privilege tax cannot be interposed to defeat a claim, unless the party invoking the statute shall have offered to pay what is justly due. Hamilton v. Halpin, 68 Miss. 99.
Further, this is not an effort on the part of appellee to maintain a suit on the contract. The matter has passed that stage. Appellant cannot set up the defense in this possessory proceeding. He could have enjoined the sale, on condition of tendering the true amount due. Having failed to do that, his only remedy is by bill to vacate the conveyance, and restore the status existing before the sale. And relief would not be granted in such case without payment of the amount due. If this is not true, a debtor suffering his property to be sold without protest, would occupy a better position than one resorting to equity in the first instance.
3. Besides all this, the action of unlawful detainer is not one to try title. An investigation of the questions raised on this statute would be a direct trial of title between the parties.
The precise question is,...
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