99 So. 681 | Miss. | 1924
delivered the opinion of the court.
This is an appeal from a decree of the chancery court of Humphreys county overruling a motion to dissolve a preliminary injunction.
The facts out of which this litigation arose as shown by the bill of complaint and answers, which by agreement were considered as the affidavits of the respective parties, and also by the oral testimony offered at the hearing of the motion to dissolve the injunction, are substantially as follows: During the year 1919 appellee James A. Waring sold a large tract of land located in Humphreys county, Miss., taking as a part of the purchase price therefor a series of promissory notes amounting, in the aggregate, to more than thirty thousand dollars. On the 16th day of March, 1920, Waring borrowed the sum of eight thousand six hundred forty dollars from the Belzoni branch of the Grenada Bank, executing his note therefor, payable to the Grenada Bank or bearer on November 15, 1920, and pledged as collateral to secure the payment of the note a list of notes which had been executed for the deferred payments of land previously sold by him, amounting to thirty-one thousand
“Having deposited or pledged as collateral security for the payment of this or any other obligation of mine to said bank the following: List of notes totaling thirty-one thousand four hundred fifty-six dollars and sixty-six cents. Now, in the event of the nonpayment of this note at maturity, the holders hereof are hereby invested with full authority to use, transfer, hypothecate, sell, or convey the said property, or any part thereof, or any substitute therefor, or any addition thereto, or to cause the same to be done, at public or private sale, at the option of the holders hereof, with or without notice or demand of any kind, which is hereby expressly waived, at such place and on such terms as the said holders hereof may deem best. And the holders of this note are authorized to purchase said collaterals when sold for their protection. And the proceeds of such sale, transfer or hypothecation, shall be applied to the payment of this note, together with all protests, damages, interest, cost and charges due or incurred by reason of its nonpayment, or in the execution of this power. Also, a commission of two and one-half per cent, on the gross amount of said collaterals sold. The surplus, if any, after the payment of this note, with all expenses and charges, shall be paid to the payer hereof, or at the election of the holders be paid on any other obligation of the payer hereof, whether as principal debt- or or otherwise, held by the holders hereof.”
Waring had been a customer of the Belzoni branch of the Grenada Bank for a number of years, and the negotiations for this loan were between Waring and J. W. McClintock, vice president of the Grenada Bank, in active charge of the Belzoni branch. On December 23,1920, this note was renewed by Waring, and additional security of warehouse receipts for thirty-eight bales of cotton
In June, 1920, the said J. W. McClintock and J. M. Powell, a director of the Belzoni branch of the Grenada Bank, owned a large amount of the capital stock of the Arkansas-Texas Company, an oil company domiciled at Little Bock, Ark., and they employed one H. P. Lucas to sell this stock. On June 15,1920, Lucas sold to Waring stock in this company, for which Waring executed his note for twenty-five thousand dollars payable in six months after date. This note, which was payable to bearer, was delivered to McClintock, the stock issued to Waring, and afterwards the note was transferred by McClintock to the parent bank at Grenada, the transfer being negotiated with J. T. Thomas, president of the Grenada Bank. A few days after the first sale of stock to Waring, Lucas sold him additional stock in the same oil company, for which he executed his note for fifteen thousand dollars, the evidence offered at the trial showing that this note was still held by McClintock at that time.
In December, 1920, Waring conveyed to Jemima Coaps, who. is his sister, all of his property, including the notes previously pledged as collateral to secure the payment of his note to the Belzoni branch of the Grenada Bank. When this note matured Waring went to the bank at Belzoni and tendered the full amount due thereon, and demanded the surrender of the note and the return of his securities. The hank declined to deliver the securities, claiming the right to hold them as security for the twenty-five thousand dollars by virtue of the pledge thereof as collateral security for the payment of the note or any other obligation of the maker to said bank.
On February 11, 1921, the Grenada Bank, as holder of the two notes, one for eight thousand three hundred seventy-five dollars and the other for twenty-five thousand dollars, filed an original bill in the chancery court
On March 5, 1921, the original bill in this cause was filed, and on April 19, 1921, there was filed the amended and supplemental bill, on which the motion to dissolve the injunction was heard. This bill makes the Grenada Bank and its Belzoni branch and J. W. McClintock, J. M. Powell, S. E. McClintock, J. M. Cashin, J. T. Thomas, the Arkansas-Texas Oil Company and all. its officers and directors parties defendant, and avers in detail the facts hereinbefore stated. It further sets forth in great detail the alleged dealings of J. W. McClintock and J. M. Powell, directors, and J. T. Thomas, president, • of the Grenada Bank, in certain oil stock, and in the organization of a certain oil company which was merged with the Arkansas-Texas Oil Company, whereby they acquired a large amount of the capital stock- of the latter company. It further avers that the complainant, J. A. Waring, had great confidence in the superior business ability of J. W. McClintock, and that for many years he had advised with him in reference to all his business transactions; that the said McClintock, Powell, and Thomas, knowing that the complainant relied largely on the ad
Process for the nonresident defendants was not executed, and they entered no appearance. The resident defendants all filed answers, answering in detail every averment of the bill-of complaint, and specifically'denying every averment of fjaud or unfair dealing, denying that the stock sold to Waring was worthless, or that it was not worth the amount agreed to be paid therefor at the time of the sale, and denying that any false or fraudulent representation was made or authorized to be made by any officer of the Grenada Bank, and denying that in the purchase of the stock the complainant, Waring, relied upon a representation or statement made by Mc-Clintock or Powell. It is unnecessary to. set put further details of the answer.
The testimony offered at the hearing of the motion to dissolve the injunction, which consisted of the bill of complaint and answers, which by agreement were offered as the affidavits of the respective parties, and also the affidavit of H. P. Lucas, and the cross-examination of J. W. McClintock, is conflicting throughout, and especially as to the value of the stock sold to Waring and the amount of the dividends received by him therefrom, and as to the representations made to Waring and all allegations of fraud contained in the bill of complaint.
The appellant presents numerous grounds- for a reversal of the decree of the court below, but we deem it
Section 553, Code of 1906 (section 313, Hemingway’s Code), provides:
“The [chancery] court shall have jurisdiction of bills exhibited by creditors who have not obtained judgments at law, or, having judgments, have not had executions returned unsatisfied, whether their debts be due or not, to set aside fraudulent conveyances of property, or other devices resorted to for the purpose of hindering*, delaying or defrauding creditors; and may subject the property to the satisfaction of the demands of such creditors as if complainants had judgments and execution thereon returned ‘No property found.’ Upon such a bill a writ of sequestration or injunction, or both, may be issued upon like terms and conditions as such writs may be issued in other cases, and subject to such proceedings and provisions thereafter as are applicable in other cases of such writs; and the chancellor of the proper district shall have power and authority to grant orders for receivers, in same manner as if the creditor had recovered judgment and had execution returned ‘No property found. ’ The creditor in such case shall have a lien upon the property described therein from the filing of his bill, except as against bona-fide purchasers before the service of process upon the defendant in such bill.”
Seeking to avail of the right and remedy afforded by this statute, the appellant, as the holder of two Waring notes, one for eight thousand three hundred seventy-five dollars and the other for twenty-five thousand dollars, filed its bill of complaint against J. A. Waring and Je
The right given by this statute to the appellant,-the bank, is a valuable one, since by a resort to the remedy thereby created, if it can establish the averments of its bill, it is given not only the right to enforce the notes held by it, but also a lien on land and personal property to guarantee the payment of its decree, and, without deciding whether or not equity will ever enjoin a suit pending in the same court where the suit sought to be enjoined is predicated on a statutory jurisdiction in which the remedy can only be enforced in the manner provided by the statute, we think it is clear that it will not do so in the present case, for the reason that any relief to which the complainant would be entitled under the bill in the present case can be obtained by means of a cross-bill in the original action.
It is the general rule that a subsequent action cannot be maintained to enjoin the prosecution of another action in the same court unless it clearly appears that the relief to which the complainant in the later action
The twenty-five thousand, dollars Waring note is the basis of the original suit wherein the Grenada Bank and J. A. Waring and Jemima Coaps are parties, and if the defense, here sought to be made the basis of a cancellation of this note were therein interposed it would be just as effectual as a defense and as efficacious in defeating liability, and upon proper application in the original suit the court would have full power- to make all orders necessary for the preservation of the status quo of the property and securities involved. The prayer of the bill discloses that no relief whatever is sought against the defendants J. M. Cashing, J. M. Powell, S. B. McClintock, and J. T. Thomas,’ who are merely attornej^s, agents, and officers of the Grenada Bank, and as such subject to the directions of the bank and any restraining orders of the court against it. It is clearly established by this record that
It follows from the views herein expressed that the decree of the court below be reversed, and decree entered here dissolving the injunction and dismissing the bill.
Reversed and decree here for appellant.