Opinion
No. 31859.
October 28, 1935.
1. APPEAL AND ERROR.
Finding of chancellor on conflicting evidence would not be disturbed in absence of reversible error in record.
2. MORTGAGES.
Finding that mortgagor's wife did not sign or give mortgagor authority to sign her name to deed of trust and did not know that mortgagor signed her name to deed, which embraced land belonging to wife, held to sustain judgment in foreclosure suit releasing land belonging to wife from foreclosure order.
APPEAL from the chancery court of Wayne county; HON. D.M. RUSSELL, Chancellor.
W.M. Hutto, of Waynesboro, for appellant.
It is held that where mortgage is taken in renewal of a prior mortgage on the same property, there being merely a change in the form of the indebtedness, although the old security is cancelled of record on the supposition that the new security is good, if it turns out that it is not valid, and rights of third parties have not intervened, without notice, the creditor is in equity entitled to the benefits of his original security, and is entitled to have the original security foreclosed by the court in order to satisfy the indebtedness.
Sledge v. Obenchain, 58 Miss. 670; Thomson v. Hester, 55 Miss. 656; Schumpert v. Dillard, 55 Miss. 348.
Where two trust deeds of different debts embracing the same property are made to the same mortgagee, the second will not avoid the first and the mortgagee is entitled to have the security described in the first mortgage sold to satisfy the indebtedness due.
Christian v. Green, 45 So. 425; Whitaker v. Dick, 5 How. 296.
It was held by this court that a mere change in the form of evidence of indebtedness secured by a deed in trust, as the giving of a new note, will not operate as a payment of the debt of the original debt or discharge the original security, unless it is clearly apparent that the intent of the parties was to release the original security.
Gleason v. Wright, 53 Miss. 247.
The renewal mortgage executed by A.L. Crosby alone does not constitute a new promise to pay. It is merely accumulated security to keep alive the mortgage previously given by him and his wife and specifically pointed to the original mortgage executed by Crosby and his wife.
Herron v. Land, 119 So. 823; Chase National Bank v. Chapman, 160 So. 286.
Frank Clark, of Waynesboro, for appellees.
The appellant suggests as an error the action of the court when it released the land of Mrs. Crosby named as security in the deed of trust in question. The appellees are of the opinion that the court below was not in error, the testimony of A.L. Crosby, when called as an adverse witness by appellant and when called as a witness for appellees, shows conclusively that Mr. Crosby signed his wife's name to the documents in question.
The appellant depends upon the case of Chase National Bank v. Chapman, 160 So. 286. This case and the Chapman case are not similar at all. In the Chapman case, the testimony shows that the husband attended to all of the business of his wife and that the money borrowed was used to carry on the business of the wife. In this case the testimony shows just to the contrary, the money borrowed and the note executed was for the use of third parties. The testimony is not in conflict on this point. Mrs. Crosby and nothing connected with her business and farm received one penny of the money in question. Her business did not necessitate the borrowing of money. In the Chapman case, Mrs. Chapman knew her husband borrowed the money and knew what it was used for and knew it was used to carry on her business. Therefore there is no inference in this record that the husband had implied power to mortgage his wife's property.
On or about October 9, 1930, A.L. Crosby executed a deed of trust to the First National Bank of Waynesboro, Mississippi, to secure an indebtedness to the bank of eight hundred dollars. To this deed of trust A.L. Crosby affixed the name of himself and wife, and embraced therein property belonging to his wife, but the name of his wife did not appear in the acknowledgment thereof. On March 20, 1932, A.L. Crosby executed a renewal of the deed of trust signed by him alone, but reciting that, "This being a renewal and continuance of a deed of trust recorded in Book A-5, page 472 of the records of Wayne county, Mississippi."
Thereafter, the bank was placed in liquidation, and Neno was made receiver. The debt being unpaid, he filed this bill in the chancery court to foreclose the deed of trust to satisfy said debt, making A.L. Crosby, Mrs. Crosby, and the trustee in the deed of trust parties thereto, and alleging that said property had been conveyed to Mrs. Blanche Perry, the daughter of Mr. and Mrs. Crosby, to prevent the bank from realizing against the security named in the deed of trust, and also making said daughter a party to the suit, and stating that she took the lands with full knowledge of the deed of trust from her father and mother.
On the hearing, A.L. Crosby testified that he had indorsed a note for his son, and another for another party and that these notes were due to the bank, and that its officials approached him and desired that he give a deed of trust to secure said debt, mentioning, the land involved as desirable security; that the records show that the lands belong to his wife, this fact being known to the bank; and that he gave the note and deed of trust, with a financial statement, to aid the bank, but that he did not have authority from his wife to sign her name to the deed of trust, and that she had no knowledge thereof until this suit was brought. Mrs. Crosby testified that she absolutely knew nothing of the note and deed of trust, and had no knowledge of her name being signed to the deed of trust by her husband until she was summoned in this suit; that she never gave him any authority to sign her name to the deed of trust; that all the lands embraced in the deed of trust belonged to her except ten acres thereof; and that she never signed or acknowledged the deed of trust, nor authorized any one else to sign her name thereto. The acknowledgment to the deed of trust appears to have been made before Graves, the president of the bank, and it does not appear therefrom that Mrs. Crosby acknowledged it. However, Graves testified that Mrs. Crosby came in later and acknowledged it, but he never reduced the acknowledgment to writing. He also testified that Mrs. Crosby signed the deed of trust, and the cashier of the bank testified that her signature to the deed of trust was genuine, and that he was familiar therewith.
The chancellor found that Mrs. Crosby never signed the deed of trust, and that her husband had no authority to sign it for her, and ordered a foreclosure against A.L. Crosby as against the ten acres of land belonging to him, and a release of the land belonging to Mrs. Crosby from the order of foreclosure, and rendered a personal judgment against A.L. Crosby for the amount of the indebtedness due to the bank. From this decree, the bank appeals.
The question presented is merely the finding of the chancellor upon conflicting evidence. The parties were all before him, he heard the whole matter, and decided on the conflicting evidence as authorized by law. His finding being upon such conflicting evidence, and there being no reversible error in the record, the judgment of the court below will be affirmed.
Affirmed.