Opinion
No. 32750.
October 25, 1937. Suggestion of Error Overruled December 6, 1937.
1. APPEAL AND ERROR.
In action for confirmation of title of lands purchased on foreclosure of trust deed, whether indebtedness of original owner to creditor and assignee of note and deed of trust given to secure the debt had been paid prior to foreclosure of the deed by the creditor and purchase by him of land at trustee's sale was for the chancellor.
2. JUDGMENT.
Where chancellor entered final decree and mailed it to clerk of court, who recorded the instrument and thereafter heard both parties in argument and subsequently rendered decree, and there was no showing that chancellor attempted to recall first decree, first decree was final and court could not change or modify it except on proper application, and second decree was a nullity.
3. MORTGAGES.
In action for confirmation of title to lands purchased on foreclosure of trust deed, where decree directed that title be confirmed in defendants, decree canceled plaintiff's claim to the land as against contention that court should have directed the parties to execute deed therefor or appointed special commissioner to execute such deed as provided by statute (Code 1930, section 456).
APPEAL from the chancery court of Smith county. HON. BEN STEVENS, Chancellor.
T.J. Wills, of Hattiesburg, and Homer Currie, of Raleigh, for appellant.
The court in its finding of fact found as follows: "The court further finds that thereafter and before the beginning of the foreclosure proceedings, as hereinafter set out, that Davis had paid to T.A. Cartee his debt in full as to the said sum of $834.83 but that the said T.A. Cartee declined and refused to re-deliver the deed of trust and the unrecorded deed." This finding of fact by the court is unwarranted by the evidence in the case. It is in direct conflict with the record evidence in the case and all of the testimony in conflict with the records is so completely impeached by the records themselves that it is difficult to understand how the court could bring itself to announce such a finding of fact.
A man cannot be landlord and tenant at the same time. Kersh certainly was the owner of the land and the landlord until the time that he made the conveyance to the complainant, appellant here. Appellant has been the owner of the land and the landlord until such time as the legal title is divested out of him in some manner recognized by law. It cannot be claimed that appellant was divested of the title at any time prior to the entry of the final decree in this case. No rent could attach and no order for rent could be entered against appellant as long as the title remained vested in him.
Section 2111, Code of 1930, provides that an estate of inheritance or leasehold for a term of more than one year in lands shall not be conveyed from one to another unless the conveyance be declared by writing signed and delivered. Kersh did not declare in writing that he was reconveying the land to Davis and he did not sign and deliver any instrument to Davis. Under the above section of the code the title remained in Kersh.
Hall v. Waddill, 78 Miss. 16, 27 So. 936; Osler v. Atlas Co., 127 Miss. 511, 90 So. 185; Morgan v. Collins School House, 133 So. 675; Roberts v. Bookout, 139 So. 175.
The legal title was in Cartee. The defendant, Davis, had no interest in the land, either legal or equitable, for the reason that the legal and equitable title was passed from Davis to Kersh. Kersh executed a deed of trust on the property, in which he placed the legal title in a trustee. The trustee exhausted the legal title placed in him in the foreclosure sale. The equitable title remained in Kersh. Cartee, as a purchaser under the foreclosure sale, acquired whatever title that was vested in the trustee.
It is not denied here that in a court of equity, if the court found that Davis or his grantee, co-defendant, were entitled to relief, that the court had the power to grant that relief and if the court, in granting the relief, desired to vest them with the title to the lands, it could only be done through a commissioner vested with the title, with the power to convey and the commission would then have been conveying in lieu of and in the place and stead of Cartee in whom the legal and equitable title was vested. The court utterly ignored the rule of law and of equity touching such matters in entering the decree in this cause.
The court erred in directing that a final record of the proceedings be made and in taxing the cost against the appellant. Proceedings of this character, and the decree entered herein, is not such a proceeding as is contemplated by the code in making a final record of proceedings touching land.
When the court signed the final decree on July 11, 1936, and the same was entered on the minutes of the Chancery Court of Smith County on July 15, 1936, the court was divested of all power and authority thereafter. The only way that the case could have been re-opened was by a bill of review. Of course, there is no claim that such proceedings were taken. Then on August 8, 1936, twenty-eight days after the court had lost jurisdiction, and the decree was final, and the court was as completely divested of power and authority to enter a decree in this cause as he would have been if no such cause had ever been filed, he entered the decree herein complained of. The decree so entered was a nullity and this appeal attacks it as a nullity and asks the reversal of the case because of the error in so entering said decree.
34 C.J. 210, par. 434; Wiggle v. Owen, 45 Miss. 691.
F.M. Morris, of Hattiesburg, for appellees.
We submit that the decision of the Chancellor was supported by the great weight of testimony produced in this case.
It is argued that the court erred in confirming the title in the appellees and that the court's action was based upon the erroneous conclusion of law and that when Kersh handed the unrecorded deed to Davis and by handing the same to Davis that it passed the title back from Kersh to Davis. The court did not so find.
The eighth assignment of error, which is not supported by citations from any authorities, is that the court erred in entering a decree of July 11, 1936, and entering another decree on August 8, 1936. The actual facts are that the matter was taken under advisement and by agreement of counsel and the parties hereto, it was to be argued on July 4, 1936. For some reason the counsel for the appellant was not able to appear and asked that it be continued to July 11, 1936, at which time the counsel for the appellant did not appear at all and give any reason for not appearing but made default and thereupon a decree was filed and sent by mail from Hattiesburg, Mississippi, to the Chancery Clerk of Smith County, at Raleigh, Mississippi. On the same day the counsel for the appellant explained to the Chancellor the reason for the default and the case was continued until August 8, 1936. The Chancellor tried to prevent the entering of the decree given on July 11, 1936, but the chancery clerk had already entered the decree. On August 8, 1936, at the instance of the counsel for the appellant, the case was argued and a decree rendered which was filed on August 11, 1936. Therefore, the court did not err in rendering two decrees since the decree on August 8, 1936, was rendered at the request and instance of the counsel for the appellant. We submit that the decrees are valid and enforceable.
Argued orally by T.J. Wills, for appellant, and by F.M. Morris, for appellee.
This is the second appearance of this case in this court, 172 Miss. 889, 161 So. 696, 698. The former appeal was from a decree sustaining a demurrer to a cross-bill and granting the relief prayed for in the original bill. The court there held that on its allegations the cross-complainants were entitled to the relief therein prayed for. On the return of the case to the court below it was tried on the pleadings and proof, resulting in a decree for the cross-complainants. A full statement of the case appears in our former opinion, will not be reproduced here, and this opinion must be read and interpreted in connection therewith.
The appellant practically reargues the questions presented on the former appeal. But, aside from the law of the case rule, we will adhere to the rulings there made. On the question of fact presented as to whether the indebtedness by Davis to Cartee, secured by the pledge of the note and deed of trust from Kersh to Davis, had been paid prior to the foreclosure of the deed of trust by Cartee and the purchase by him of the land at the trustee's sale, the evidence was in conflict, and the court below was warranted therefrom in solving the conflict as it did. The record presents no error except as hereinafter stated.
When the cause came on to be heard in the court below, an order was entered by consent of the parties thereto that it "be argued before the Chancellor in vacation at his office in Hattiesburg, Mississippi, on Saturday, June 13th, at 9 o'clock, A.M., and a final decree to be entered therein by the Chancellor on said date or as soon thereafter as possible." On June 13th, by agreement of counsel, the court ordered the case to be argued on July 4th thereafter. On July 11th, in vacation, the chancellor rendered a decree which reads in part as follows: "It is, therefore, accordingly ordered that the land described as: [Description of land here omitted] is hereby confirmed in the defendants, A.J. Davis and Elizabeth S. Blacketor. And that all claims of the complainant, T.A. Cartee, be and the same are hereby cancelled, set aside and held for naught. And it is further ordered that the title of the defendants be confirmed as of November 10th, 1930." This decree was forwarded to and recorded by the clerk of the court below. On August 8th thereafter the chancellor rendered another decree in vacation, setting forth that "the matter having been taken under advisement at the May 1936 Term of the Chancery Court of Smith County and by agreement of all parties to be decided in Vacation." The decree then proceeds in more specific and elaborate terms to grant the appellees the relief granted in the former decree, and then charges the appellant with rent for the use of the property, against which it credits him with taxes paid by him thereon.
The appellant says that this second decree is void for the reason that the first decree was final and divested the chancellor and the court below of power to render another and different decree. Counsel for the appellees says that the rendition of this second decree came about in this wise: By request of counsel for the appellant the hearing of the cause was postponed by the chancellor from July 4th until July 11th, at which time counsel for the appellant failed to appear, but after the decree of that day was rendered did appear, explained his default satisfactorily to the chancellor, who then again set the case for argument on August 8th. The decree rendered on July 11th, however, had been mailed by the chancellor to the clerk of the court below and was recorded by him before he received a notice which the chancellor gave him not to do so. Counsel for both parties appeared before the chancellor on August 8th and argued the case, which resulted in a decree of that day being rendered.
Neither the decree rendered on August 8th, nor any other portion of the record, discloses that, after the rendition of the decree of July 11th, the chancellor attempted to recall it and set August 8th for the argument of the case. Whatever the effect of these facts would here be, if disclosed by the record, is not before us, therefore we cannot take cognizance thereof. In so far as the record discloses, the decree rendered on July 11th was final, and thereafter the court below was without power to change or modify it, except on a proper application therefor based on facts so permitting. It follows, therefore, that the second decree was a nullity. The first decree, however, remains in full force and effect. It does not charge the appellant with the payment of rent, and therefore the appellees are not entitled thereto.
On the former appeal we said that the appellee "Davis had the right to go into a court of equity and set up the transactions and either have the deed of trust foreclosed by a sale under its terms or by having the chancery court to direct a reconveyance so as to transfer title back to the original grantor," Davis. The reconveyance here referred to is that to be made by Kersh, or his grantee, Davis, and the deed of trust referred to is that given by Kersh to Davis to secure the payment of the purchase money due by him to Davis for the land. The first decree rendered by the court below neither directs the foreclosure of this deed of trust nor a reconveyance of the land to Davis or his coappellee, but simply confirms title to the land in the appellees. This same defect, if such it is, appears also in the second decree. Counsel for the appellant says that, instead of confirming title to the land in the appellees, the court should have either directed the proper parties to execute a deed to them therefor or appointed a special commissioner to execute such a deed, as provided by section 456, Code 1930. Whatever force there may be in this contention of the appellant, it cannot avail him here, for the decree specifically cancels his claimed interest and title to the land.
The decree of July 11, 1936, will be affirmed, but the decree of August 8th will be set aside and held for naught.
So ordered.