Opinion
No. 28344.
February 3, 1930.
1. MORTGAGES. Defendant in foreclosure suit held not to have sustained burden of proving payment.
Defendant, in suit to foreclose a deed of trust and set aside certain conveyances as fraudulent held not to have sustained burden of proving payment of entire debt.
2. MORTGAGES. Defendant in foreclosure suit had burden of proving payments.
Defendant in suit to foreclose deed of trust and set aside certain conveyances as fraudulent had burden of proof to show payments as alleged.
3. APPEAL AND ERROR. Appellant had burden of proving that decree of chancellor was manifestly erroneous.
Appellant had burden on appeal from chancellor of showing that decree on the facts was manifestly erroneous.
4. APPEAL AND ERROR. Facts cannot be brought into case by way of briefs.
Generally, facts are not to be brought into case by way of briefs of counsel.
5. JUDGMENT. Decree in chancery must be characterized by reasonable certainty in its terms, particularly in respect to provisions fixing rights and liabilities of parties.
Decree in chancery must be characterized by reasonable certainty in its terms, and this is particularly true in respect to those provisions which fix the rights and liabilities of the respective parties to cause.
6. JUDGMENT. Decree must be construed as a whole according to same rules of construction which appertain to other legal documents.
Decrees must be construed as a whole, in accordance with the same rules of construction which appertain to other legal documents, requiring effect to be given to all its recitals, with prime object to ascertain the intention that selected words used therein.
7. JUDGMENT. Order of court submitting cause during vacation was sufficient as evidence of consent to uphold authority of court to enter decree.
Order of court during term submitting cause for decree in vacation was sufficient as evidence of consent to uphold authority of court to act under it in vacation, in that suit can be submitted only by all parties, and words of submission therein must be construed as having been used in legal sense evidencing assent of parties to submission.
8. APPEAL AND ERROR. Assignments not argued will be taken as waived.
Assignments of error which are not argued will be taken as waived on appeal.
APPEAL from chancery court of Greene county. HON. D.M. RUSSELL, Chancellor.
Jesse M. Byrd, of Leakesville, and Currie Currie, of Hattiesburg, for appellant.
It is sufficient that the record in the case demonstrates that the debt herein sued for had been paid and more than paid before the bill of complaint was filed. That ends and ought to end this whole litigation.
Section 570, page 628, Mississippi Chancery Practice, Equity, Griffith; Petrie v. Wright, 14 Miss. 711; Horn v. Safford, 71 Miss. 776, 15 So. 639; Money v. Dorsey, 15 Miss. 22; Griswold v. Simmons, 50 Miss. 141.
Where there is no written agreement of the parties in the record in the cause consenting to a trial of the same on the merits in vacation, and there is nothing in the record to show affirmatively that all the parties consented to a trial of the cause on the merits in vacation, the case cannot be heard in vacation.
Par. 557, page 609, Mississippi Chancery Practice, Equity, Griffith.
It is only after final hearing on the merits in term time, that a court may take a case under advisement for decision in vacation, and the court itself is not authorized to do this except by order on the minutes of the court, and such an order is necessary to confer jurisdiction upon the court to render a final decree in vacation.
Pars. 87 and 594, Mississippi Chancery Practice, Equity, Griffith.
J.W. Backstrom, of Leakesville, for appellee.
A sworn answer to be evidence must be direct, express and positive in its response to the allegations of the bill and if instead of being direct, express and positive in its response to the allegations of the bill, it is evasive, argumentative, inconclusive, contradictory, unreasonable, shows a lack of candor, or be couched in the negative pregnant, or, be in any evident way indicative of a suppression of the full and actual truth it will not come, or else will come feebly within the law admitting it as evidence.
Section 571 of Judge Griffith's Chancery Practice.
If the answer is evasive and irresponsible the complainant is not required to prove the allegations of his bill.
Applewhite v. Foxworth, 31 So. 533, 79 Miss. 773; McAllister v. Clopton, 51 Miss. 257; Cowan v. Alsop, 51 Miss. 158; Taylor v. Webb, 54 Miss. 36; Mead v. Day, 54 Miss. 58.
Section 506 of the Mississippi Code of 1906, provides:
"And by consent of the parties or of the solicitors of record he may try causes and deliver opinions and make final decrees therein in vacation."
The statute does not provide that the consent must be in writing and filed among the papers.
This record does not show anywhere any objection being made before the trial judge to the hearing in vacation and this court being a court of review, and the alleged error not being vital in its nature, but, arising merely on a point of practice, which might have been waived and to which the trial judge was not especially directed cannot in fairness to him be considered on appeal.
Owens v. Waddell, 39 So. 459, 87 Miss. 310.
The point that we make and which is the point we contend is true, that this cause was set for hearing in vacation by the court with the assent of the parties and to accommodate and for the convenience of the appellants and it does not come within the rule laid.
J.J. Newman Lumber Co. v. Pace, 102 So. 570; Callicott v. Horn, 102 So. 850, 137 Miss. 693.
Suit was filed in the chancery court by appellee to foreclose a deed of trust and to set aside certain conveyances as fraudulent. The deed of trust was given by appellant to secure a note for two thousand five hundred dollars, with interest, dated July 5, 1919, and due one year after date. The chancery court sustained the bill and entered a decree for appellee.
It is the first and principal contention of appellant that the record sufficiently shows that the entire debt has been paid and that the decree is therefore wholly erroneous. The manner in which appellant attempts to show this is by resort to a number of exhibits found in the record, which it is said were identified by the official stenographer and filed by the clerk, during the taking of testimony, on one of the hearings before the trial court. No notice was given the stenographer to transcribe the stenographic notes, and the exhibits mentioned are without the explanation that presumably would be furnished by a stenographic transcript. It is contended, however, that the amended answer, filed in response to an amended bill of discovery, contained a sufficient reference to these exhibits to make them a part of the record. Admitting them for the purposes of this case, but deciding nothing as a matter of precedent whether these exhibits are properly a part of the record, we find that the items thereof, not credited on the back of the notes sued on, are as follows: (1) A canceled deed of trust for one thousand two hundred fifteen dollars; but this deed of trust appears to have been on an entirely separate tract of land, and the letters in evidence written by appellant indicate that this was a separate transaction and a different debt. (2) A canceled check for five hundred sixty-four dollars; but the exhibits and letters show that this was the balance due on the separate deed of trust last mentioned, and was not an application to the note and deed of trust here sued on. (3) A check for one thousand five hundred dollars; but the exhibit fails to show that this check was ever cashed, and the testimony of appellee asserts that this check was returned to appellant unused, and two letters of appellant in the record expressly mention and admit this to be the fact. This leaves only two other items, a check of fifty dollars dated February 1, 1922, and a receipt for one hundred dollars dated April 15, 1922; but it cannot be told from the record whether these apply to the second mortgage debt above mentioned or to the one sued on. In view of the positive testimony of appellee that all credits on the notes sued on were credited on that note, it must be taken as true, in view of the force of the chancellor's decree, that the two payments last mentioned were on the other debt.
Again, we find in the record a letter written by appellant dated October 22, 1923, in which he admits that according to his books he was on that date due appellee three thousand two hundred fifteen dollars, but whether this is of principal and does not include interest is not clear. Taking this, however, as the total, we find by looking to all the payments shown to have been made to appellee since that date that these were three: (a) eighty dollars, July 26, 1924; (b) five hundred sixty-four dollars, August 25, 1924; and (c) fifty dollars, June 17, 1925 — a total of six hundred ninety-four dollars, which, when taken from the three thousand two hundred fifteen dollars, leaves a balance of two thousand five hundred twenty dollars. And, when the proper calculations of interest are made, this brings the sum within a near approximation of the exact amount found by the chancellor as due for principal and interest.
There is yet another method apparent on the exhibits, which, when taken in connection with the deposition of appellee and the letters of appellant annexed thereto, will yield approximately the same result as that last above mentioned, but a further pursuit of the facts is unnecessary. The burden of proof was on appellant to show payment. Enough has been said to demonstrate that he has failed to do so. In any event, he has failed to show that the decree on the facts is manifestly erroneous, and that is his burden on appeal from the chancellor.
The second point relied on by appellant is that the final decree is void because rendered in vacation without the consent of the parties that the case should be determined in vacation. There is attached to appellee's brief a letter, written by the solicitor for appellant in the trial court, that the order for the vacation decree was made by consent of the parties — in fact, was so made at the earnest request of appellant's trial solicitor. But we lay aside this letter under the general rule that facts are not to be brought into a case by way of briefs of counsel, and look solely to the order of the court. The order made and entered at the October, 1928, term of the chancery court reads as follows:
"The above styled cause is submitted to the court for final hearing upon amended bill of complaint, amended answer, deposition of complainant, testimony of A.M. Rayl taken at a former term if procured within thirty days from this date together with exhibits to said testimony. If said testimony of said Rayl is not procured within thirty days cause is to be heard and decided without said testimony.
"If said testimony is filed within said time, complainant, if he request, to be allowed ten days in which to file brief with the court, and if defendant's counsel shall so request, he to be allowed to file reply brief within ten days thereafter. After which time the court will adjudicate said cause and enter decree in vacation."
It will be observed that the "cause is submitted to the court for final . . . decree in vacation." There is no question but that a decree in chancery must be characterized by a reasonable certainty in its terms, and this is particularly true in respect to those provisions which fix the rights and liabilities of the respective parties to the cause. But decrees will be construed as a whole, and in doing so there is to be observed the same rules of construction which appertain to other legal documents, that is to say, effect must be given to all its recitals and with the prime object to ascertain the intention that selected the words used therein. What was the meaning, then, of the words "the cause is submitted to the court for final . . . decree in vacation?" Ordinarily, when a case is spoken of as having been submitted, it means that the parties have delivered same over, or referred it, to the court for disposition. More technically it may mean that the parties so refer the cause without argument. And in another sense it may be said of one party that he submits his case when he has nothing further to say either by way of proof or of argument. But here we have a case wherein the court in term time is making an order for decree in vacation. The court does not submit a case to itself, the parties take that step. And, of course, one party may not submit a case to be heard in vacation. This can be done only by all the parties. The words in the order must be construed, therefore, as having been used in the legal sense, namely, that all the parties submitted the cause for decree in vacation; and, since parties must be presumed to have acted in good faith — and in a matter of this kind they will not be heard to aver to the contrary — it must be held that in the submission they assented to that which would make the submission valid. We hold, therefore, that the order is sufficient as an evidence of consent to uphold the authority of the court to act under it in vacation.
The other assignments are not argued, and are therefore taken as waived.
Affirmed.