Day v. Girrs, 78 So. 609

Day v. Girrs

78 So. 609 | Miss. | 1918

Etheidge, J.,

delivered the opinion of the court.

R. H. Day, the complainant, filed his bill in the chancery court of Newton county to enforce a vendor’s lien evidenced by cotton notes in which Sam Halsey agreed to pay to Heniy Gibbs, or bearer, thrge bales of middling cotton weighing five hundred pounds each, which he claimed to have purchased from H. E. Gibbs. It appears that Gibbs deeded Halsey certain lands in Newton county and took six promissory notes for three bales of cotton each, one note to be paid annually through each of the six-year periods. Halsey gave a deed of trust to Day upon crops grown upon the land which he bought from Gibbs, and turned over certain cotton to Day on said account. On the. 17th day of November, 1910, Gibbs demanded the cotton of Day which he had bought from Halsey, but Day refused to turn over the cotton or to pay the value thereof mo-less the claim of one Robinson, who held a lien upon the land prior to its sale to Halsey, which lien was evidenced by the note of Gibbs, was satisfied. Robinson was sent for and agreed with Gibbs and Day that the value of the cotton, three hundred and nine dollars and ninety-five cents, be paid to him in discharge of *681Ms claim against the land, and thereupon Day gave his check, payable to Eobinson, for three hundred and. nine dollars and ninety-five cents, and Gibbs delivered to Day the notes payable to bearer, due November 1, 1906, and November 1, 1910, for three bales of cotton each, but did not indorse the notes in "writing. Thereafter Gibbs repurchased the land from Halsey and refused to pay the amount of the two notes in question, whereupon this suit was brought. The appellees, who were defendants below, defended, upon the theory that the notes were merely paid by Day and that it was not the intention to assign the notes. It also pleaded a plea of res adjudicata alleging that the matter had been settled in a suit between E. H. Day Company and Halsey • theretofore decided in the chancery court of Newton county. On the hearing both Gibbs and Eobinson testified' that Day would not turn over the cotton or pay the value of the cotton unless he had Eobinson’s signa-' ture. It was also shown that Day contended that he was not liable for the three bales of cotton due on the note of November 1, 1909, and that he would not satisfy the matter until Eobinson came down and his rights were satisfied.

We think there was no merit in the pleas -of res ad judi-cata, for the reason that E. H. Day Company was a corporation and the present suit is by an individual. It also appears that these notes were not involved in that suit, but that that was a suit to foreclose a deed of trust given by Halsey to Day; there, being both a failure of identity of. parties and of the subject-matter shown by this record. From a careful consideration of the evidence in the case, we think that it is manifest that, when Day gave the check to Eobinson in satisfaction of this matter and the notes were turned over to Day, it was intended that Day should have the right to be subrogated to the rights of Gibbs against Halsey and the vendor’s lien rights against the land. *682Our anti-commercial statute, Codq of 1906, section 4001, ^Hemingway’s Code, section 2564, makes notes or other writings for the payment of money or other thing assignable, and provides in its concluding paragraph that the assignee of the claim for the purchase money of land may enforce the vendor’s lien as the vendor could.

The suit being in a court of equity, it was not necessary to make Gibbs a usee plaintiff’ or that the assignment be in writing, but the action could be brought in equity in the name of Day. Judgment of the learned court below is, accordingly, reversed and remanded, with directions to enter a decree for the sale of the lands to satisfy the notes held by Day, but without personal liability against Gibbs, but a personal judgment should be entered against the other defendant Halsey.

Reversed and remanded.