181 So. 519 | Miss. | 1938
On April 20, 1929, appellees, husband and wife, gave a deed of trust to appellant on their residence for the principal sum of $4,000, the title being in the husband. The stipulated payments were made for a while, but in the fall of 1936, these payments had become considerably in arrears; and at that time, city, county and state taxes were outstanding for the year 1936, and also in whole or in part for 1934 and 1935. There was also a paving lien upon the property for $1,386.18. On January 2, 1937, appellee, the husband, and, as aforesaid, the owner of the property, agreed, in writing, with appellant that if appellant would advance and pay the taxes, including the paving assessments aforesaid, amounting in the aggregate to about $2,175, and would also advance to the contractor the cost of repainting the residence in the sum of $264.50, appellee would, under an extension agreement, proceed at once towards the retirement of the aggregate amount due at the rate of $76.26 per month. These advances were made by appellant, but the wife refused to execute the formal extension agreement, later tendered appellees by appellant. Appellant then agreed to reduce the payments to $60.32 per month, but this offer was refused.
Thereupon the trustee advertised the property for sale under the original deed of trust, designating July 8, 1937 as the day of sale. Before the arrival of that day appellees exhibited their bill under the moratorium statute, and an injunction was issued thereon without notice or any reason shown or appearing for not giving notice. The only allegation in the bill in regard to any efforts on the part of complainants to refinance the loan, as is required by Section 3, Chapter 287, Laws 1936, is *249 the general averment "that on account of general conditions they are unable to refinance things." Soon thereafter appellant filed its answer and motion to dissolve. In its answer appellant denied that appellees had been unable to refinance the indebtedness, and denied that they had made the efforts in that respect which are required under the cited chapter of the laws.
Proof was taken, but not a word was offered by complainants to show that they had made the efforts at refinancing, specifically required by the statute; nor was there a word in excuse of the issuance of the injunction without notice. In Jones v. Spearman,
These decisions had been rendered and the opinions published more than a year before the injunction in this case was issued. It is evident, therefore, that they were overlooked or else were disregarded. We observe that in a few other sections of the state no attention is being given to the requirement which we have announced, that these injunctions must not be issued without notice when reasonably possible to give notice. In view of this fact and that these moratorium injunctions are issued without bond, we now further announce that after the publication of this opinion if the moratorium law is to be any further enforced, when any injunction is issued thereunder without notice, and when reasonably possible to give the notice, we shall regard the complainant in *250 thus demanding his alleged right to an injunction, to have so impregnated his said demand with a violation of the law in immediate respect to it that his bill should and will be dismissed for that reason alone.
Appellant insists that this bill should be now finally dismissed because of the extension agreement made on January 2, 1937, in faith of which appellant advanced the sum of nearly twenty-five hundred dollars, as mentioned in the first paragraph of this opinion. Although the extension agreement was not formally executed, appellant invokes the maxim that "Equity will regard that as done which ought to be done," and that thereby the provisions of Section 12, Chapter 287, Laws 1936, would come into operation under which as to extension agreements for monthly installments extending over a period of more than three years, the moratorium statute is not available.
There are manifest difficulties which beset the pathway of the stated principle in this case, but none in the application of the doctrine of subrogation, by which, under the circumstances such as aforesaid, appellant is to be recognized as the subrogee of the liens of the city, county and state for the taxes and special assessments paid by appellant, and of the statutory lien for the repairs (see authorities reviewed in Box v. Early, Miss.,
The decree will be reversed and the cause remanded; and inasmuch as appellees were not entitled to the injunction under the showing made, a decree will be entered here dissolving the injunction, but without prejudice to the right of appellees to amend their bill in the respects aforesaid, and to pay, or tender into court, in cash, the amount necessary to retire the subrogated items aforesaid, and thereupon, notice being given, to apply for a new injunction, which shall not be issued until all the requirements herein mentioned are fully complied with by appellees.
Except for the re-enactment of said moratorium statute by House Bill No. 152, Laws 1938, the decree herein would have been already without further effect, inasmuch as Section 16, Chapter 287, Laws 1936, expressly provided that no postponement thereunder should extend beyond May 1, 1938. We think it may be now seriously questioned whether any such emergency continues to exist in this state as will support the further operation of the re-enacted so-called moratorium law, especially as to deeds of trust and mortgages given before the passage of these statutes. Whether the emergency still exists upon which the continued operation of such a law depends is always open to judicial inquiry. Wilson, etc., Corporation v. Colvard,
Appellant, by its answer and by some of its proof, has *252 apparently raised this question, but has not pressed it in argument. We, therefore, go no further in response to it than what is said in the foregoing paragraph.
Reversed, injunction dissolved and remanded.
