Opinion
No. 35596.
May 8, 1944.
BILLS AND NOTES.
Where defendant admitted execution of note sued on and that nothing had been paid upon it, court should have rendered a personal decree against defendant for principal and interest of the note.
APPEAL from the chancery court of Yalobusha county, HON. L.A.
Cowles Horton, of Grenada, for appellant.
On January 20, 1936, Jones executed to Sayle his note for $287.12 and deed of trust to secure same upon the property hereinafter described. On this property Jones was engaged in the mercantile business and in renting out the other buildings thereon. Prior to October 11, 1921, Jones was the owner of the record title to this property but on that date he had conveyed it to Mrs. Jones, his wife, by deed which was properly recorded. Jones, however, continued in the possession of the property, was the apparent owner thereof and dealt with the property accordingly. Sayle and others dealt with him in the belief that he was the owner and were in ignorance of his deed to his wife and her claim of any interest therein. Default was made in the payment of the note involved and the deed of trust was regularly foreclosed. Sayle became the purchaser of the property at the trustee's sale for the sum of $100.00 and received a deed to the property from the trustee. Appellant's bill sets up the facts for the support of its prayers for relief, which are for confirmation of appellant's title, decree against Jones and Mrs. Jones for whatever appellant may be due from them, either and both, and for general relief.
It was argued by the appellees and held by the learned court below that the description of the land embraced in the trust deed by Jones to Sayle is void; that, therefore, if for no other reason, the deed of trust was never operative against either of the appellees. The description of this land, after setting out the county and state, reads as follows: "Pt. SW 1/4 section 4, township 24, range 6 containing 5 acres more or less. Said land has 5 houses on same and is intended to cover all the land we own near Coffeeville Graveyard."
The description in the trust deed is good.
McLendon v. Ravesies, 178 Miss. 428, 173 So. 303; Jenkins v. Bodley, Smedes M. Ch. 338; McManus v. Wilson, 138 Miss. 1, 102 So. 543; Ladnier v. Cuevas, 138 Miss. 502, 103 So. 217; Lochte v. Austin, 69 Miss. 271, 13 So. 838; Pegram v. Newman, 54 Miss. 612; Mixon v. Clevenger, 74 Miss. 67, 20 So. 148; Early Co. v. Long, 89 Miss. 285, 42 So. 348; Vaughan v. Swayzie, 56 Miss. 704; Bowers v. Andrews, 52 Miss. 596; Tucker v. Field, 51 Miss. 191; Harris v. Byers, 112 Miss. 651, 73 So. 614.
Whether the trust deed and the sale thereunder be valid or void Mrs. Jones, we respectfully submit, is liable in this case under the express provisions of Section 1943 of the Code of 1930.
Porter v. Staten, 64 Miss. 421, 1 So. 487; Leinkauf v. Barnes, 66 Miss. 207, 5 So. 402; Gross v. Pigg, 73 Miss. 286, 19 So. 235; Lea v. Clarksdale Bank Trust Co., 72 Miss. 317, 16 So. 431; Rivers v. Wade Hardware Co., 151 Miss. 163, 117 So. 259; Rivers v. Eastman Cotton Oil Co., 159 Miss. 361, 132 So. 327; Chapman v. Chase Nat. Bank, 178 Miss. 401, 173 So. 455; Dean v. Boyd, 86 Miss. 204, 38 So. 297.
The proof shows and Jones admits the execution of the note and the fact that none of it had been paid. To this suit on the note he has neither plead nor shown any defense. The bill here expressly prays for a personal decree and general relief against Mr. Jones as well as other things. This appellee is admittedly liable both on the pleadings and the proof and we do not understand just why he was dismissed. Regardless of the deed of trust, this Section 1943 and decisions we have cited, we think it clear that error was committed by the dismissal of this suit against Jones.
Stone Stone, of Coffeeville, for appellees.
This is an effort to obtain a judgment against Mrs. Mattie Jones and to acquire her property through a pretended deed of trust which has an absolutely void description. There was a pretended foreclosure sale and they desire a confirmation of that. Next, the pretense is made that this matter was gotten up by way of Jones doing business with the means of his wife, when there is absolutely not one syllable in this testimony to establish such a proposition. The court denied all relief.
The first point relied on by the appellant is that the description in the trust deed is good, so I will set out the description in full: "Land in First District of Yalobusha County, State of Mississippi, to-wit: Part Southwest Quarter section 4, Township 24, Range 6, containing five acres, more or less, said land has five houses on same and is intended to cover all the land we own near Coffeeville Graveyard." It is astonishing to us that any lawyer and especially a seasoned lawyer of undoubted general ability would undertake to sustain this as a valid description in a deed.
See Beasley v. Beasley, 177 Miss. 522, 171 So. 680.
Sayle, in this bill, seeks to (1) cancel, as a cloud upon his title, the claim of appellee, Mrs. Mattie H. Jones, to a tract of approximately five acres of land, and (2) to procure a personal money decree against both of the appellees. The chancellor dismissed the bill, thus denying all relief.
Upon careful examination of the record and the law we are of the opinion he was correct except that he should have rendered a personal decree against W.C. Jones, failure to do which was likely an oversight not called to his attention. The bill alleged execution of a note by Jones to Sayle for $287.12, dated January 20, 1936, and due November 15, 1936, bearing eight percent interest from date. Jones admitted he executed the note and that nothing has been paid upon it.
The decree will be affirmed as to Mrs. Mattie H. Jones but reversed as to W.C. Jones and judgment will be rendered here against him for the principal and interest of the note.
Affirmed in part and reversed in part and judgment here.