Cooper v. Robertson Investment Co.

77 So. 953 | Miss. | 1918

Smith, C. J.,

delivered the opinion of the court.

Appellant, who is the assignee and receiver of the Century Banking Company, under a general assignment for the benefit of its creditors executed, by that, company in July, 1912, ‘ exhibited his bill in the court below against George H. Ro-bertson, V. Otis Robertson, Robertson Investment Company, and N. T. Anders, to foreclose a vender’s lien on certain lands situated in Adams county sold to George H. Robertson by the Century Banking Company, and to cancel Anders’ claim to a half interest therein. The court below decreed Anders to be the owner of a one-half interest in the land; that appellant’s lien covered the other half interest therein, and ordered that half interest sold to satisfy appellant’s lien. The land was conveyed hy H. G-. Bnlkley to V. Otis Robertson, on December 27, 1910. In February, 1911, Robertson executed a bond for title to. N. T. Anders, wherein he' admitted the receipt from Anders of seven thousand, five hundred dollars and hound himself in consideration thereof to convey to Anders an undivided half interest in the land, free of all in-cumbrances. This bond for title was not ’ recorded until July, 1915, and, prior to that time, its existence, in so far as appears from this record, was known only to Robertson and Anders. ' Robertson was largely indebted to the Century Banking Company, of which .he was president, and on September 28, 1911, executed and delivered to that company a deed to the land in settlement of the debt due by him to the hank and the assumption by the bank of a debt due by Robertson to Bulkley, amounting to seven thousand, five hundred dollars secured by vendor’s lien on the property. This sale hy Robertson to the bank was participated in by practically all of the hank’s board of directors, none of whom, other than Robertson, knew of the bond for title theretofore executed hy Robertson to Anders. On January 3, 1912, the Century Banking Company conveyed the land to G-eorge H. Robertson,, the consideration therefor amounting to. something over twenty thousand dollars being evidenced by promissory notes payable at future dates and secured by vendor’s lien on the land. George H. Robertson conveyed the land to the Robertson Investment Company, a corporation, of which Y. Otis 'Robertson was practically the sole stockholder. Robertson and Anders met in New Orleans, La., in July, 1912, and entered into a written agreement hy which it was recited that:

“Whereas, N. T. Anders and Y. Otis Robertson both of Jackson, Miss., have heretofore made certain agreements and transferred certain property located on Bailey avenue, in Jackson and in otter parts of the city of Jackson, and in Adam's county, Mississippi, which said property has been deeded to Y. Otis Kobertson and held and managed as his own property subject to certain conditions named in said agreements; and whereas, it is now desired by both of said parties to cancel each and all’ of said agreements by making a .sale of all of said property to Y. Otis Bobertson, and to consider all of said agreements null and void except a certain agreement in relation to certain property located on Mississippi Street, Jackson, Mississippi: Now therefore for and in consideration of the execution on the part of V. Otis Robertson of one note for one thousand dollars due September 1, 1912, and one note for one thousand dollars due November 1, 1912, and one note for eight thousand dollars due January 1, 1913, said notes bearing interest after maturity, it is agreed that all of said agreements shall be considered null and void and of no effect whatsoever, except that the said Y. Otis Robertson agrees that when any of said property is disposed of by the said Y. Otis Robertson then that he will apply the proceeds of said sale to the payment of the aforesaid notes, but the entire management of said property both as to the terms of sale and price, leasing, etc., shall be under the control of and under the management of the said V. - Otis Robertson, the condition being that when said property is sold that the aforesaid notes shall be taken up and paid.”

On the 15th of March, 1913, Anders surrendered to Robertson his three notes and accepted in lieu thereof the note of the Robertson Investment Company for ten thousand, two hundred and fifty-seven dollars and twenty-five cents, due one year after date, secured by a deed of trust on the Sligo and Overton plantations to one E. Turner as trustee. On July 23, 1914, Robertson delivered and Anders received one thousand shares of the stock of the Robertson Investment Company “in lien of the debt of N. T. Anders.” secured on the Sligo-Over-ton plantations, which Anders agreed to have canceled on the records of Adams county. This paper recited further that Anders .agreed to redeliver said stock to Robertson upon delivery to him of the notes of one John A. McLeod, due annually for six years, beginning May 1, 1915, hearing six per cent, interest from date, “said notes to be given in purchase of said stock, and said stock to be delivered as said notes are paid by said McLeod, but said notes and said stock to he held by me until paid by said McLeod.- If above is all carried out, then all papers in my possession are to he canceled; otherwise to remain in full force.” Anders’ claim to a half interest in the property is rested by him solely upon the bond for -title executed to him by Robertson in February, 1911, which bond for title he admits was one of the agreements referred to in the contract entered into by him and Robertson in New-Orleans, in July, 1912, but claims that Robertson, at the time this last contract was entered into, verbally agreed that the bond for title should remain in force and he treated as a security for the notes then executed by him to Anders and referred to in the written agreement. In addition to the foregoing, considerable parol evidence was introduced, from which, in connection with the foregoing, it manifestly appears, that the execution by Robertson to Anders of this bond for title was a part of a scheme entered into by Robertson and Anders for the purpose of concealing Anders’ property from his creditors, and also from his wife, whom he then intended to, and afterwards did, desert.

The decree of the court below must be reversed for three reasons: First, because of the fraudulent scheme entered into by Anders and Robertson, as a part of which the bond for title was executed as hereinbefore set out; second, because the Century Banking Company was a purchaser from Bobertson for value, without notice of appellees’ claim, it not being chargeable with Bobertson’s knowledge thereof. Scott County Milling Co. v. Powers, 112 Miss. 798, 73 So. 792; and, third, because by the agreement made in the city of New Orleans in July, 1912, between Bobertson and Anders, the bond for title was expressly canceled, .and it is not competent to vary the terms of that contract by showing a contemporaneous parol agreement that the bond for title should remain in force as a security to Anders for the payment of the notes then executed to- him by Bobertson.

Beversed, and decree here in accordance with the prayer of appellant’s bill.

Reversed, and decree here.