167 So. 2d 816 | Miss. | 1964
This case is before us on appeal by J. L. McCaffrey, Sr., and Daniel W. Dabbs, Trustee, defendants in the court below, from a decree of the Chancery Court of Forrest County rendered in favor of Mrs. Reba Copling Mills, complainant in the court below, in a suit filed by Mrs. Reba Copling Mills seeking cancellation of a promissory note for the sum of $7,000, dated March 14, 1962, and a mortgage deed of trust of even date therewith on the unexpired leasehold interest in approximately two acres of Sixteenth Section School land owned by the complainant, purportedly signed by complainant and her husband, John B. Mills, such cancellation being sought on the ground that the complainant’s purported signature to each of said instruments is a forgery.
The original bill of complaint was filed by Mrs. Reba Copling Mills against J. L. McCaffrey, Sr., and Daniel W. Dabbs, Trustee in the above mentioned mortgage deed of trust, on April 26, 1962. In her bill of complaint the complainant alleged that she was the owner of the unexpired leasehold interest in the above mentioned parcel of land said lease being a 25-year lease which had
The complainant further alleged upon information and belief that the defendant, J. L. McCaffrey, Sr., willfully, knowingly, with the unlawful intention to cheat and defraud the complainant, by threats of imprisonment and criminal prosecution, caused the complainant’s husband, John B. Mills, to sign his name to the note and deed of trust and also the name of the complainant. The complainant therefore prayed that upon the hearing of
On May 22, 1962, the defendant, Daniel W. Dabbs, filed a formal answer in which he admitted that he had been named as trustee in the deed of trust described in the complainant’s bill, but averred that he had no personal knowledge concerning the transaction between the parties mentioned in the instruments.
The defendant, J. L. McCaffrey, Sr., filed his separate answer to the bill of complaint on June 12, 1962, and in his answer the defendant admitted that he claimed an interest in the above described land under and by virtue of the above mentioned deed of trust. The defendant denied that the signature of the complainant as it appeared on the deed of trust and the record thereof was a forgery. The defendant denied that the complainant had no knowledge of the deed of trust until she received a letter from the attorney for the defendant demanding payment of the note secured by the deed of trust. The defendant denied that the complainant’s husband, John B. Mills, was intimidated and threatened with criminal prosecution by the defendant or was coerced into signing his name and the name of the complainant thereto; and the defendant denied that the complainant was entitled to any relief whatever against the defendant or the above named trustee. The defendant averred in his answer that on March 14, 1962, the complainant and her husband John B. Mills for value received, executed and delivered to the defendant their promissory note for the sum of $7,000 due and payable
The record shows that the bill of complaint filed by J. L. McCaffrey, Sr., and Daniel W. Dabbs, Trustee, as complainants, against John B. Mills and Reba Copling Mills, as defendants, seeking foreclosure of the deed of trust, was filed on May 10, 1962; that separate answers were filed by John B. Mills and Reba Copling Mills on May 25; and that an order was entered by agreement of the parties on June 22 consolidating the two causes for trial by the chancellor in vacation.
The causes were heard by the chancellor in vacation on August 16,1962. The record consists of three volumes of testimony. At the conclusion of the hearing the chancellor dictated into the record his findings of facts as follows: The chancellor found from the evidence that on March 14, 1962, John B. Mills, for value received, executed and delivered to J. L. McCaffrey, Sr., his promissory note for' the principal sum of $7,000 payable to J. L. McCaffrey, Sr., Fifteen days after date, with interest at the rate of eight percent per annum after maturity, together with 15 percent attorney’s fee in the event of default in the payment of the note. The chancellor found from the evidence that no promises or
The chancellor further found that the evidence that Reba Copling Mills did not execute the above mentioned note and deed of trust; that some woman, other than Reba Copling Mills, wrongfully impersonated Reba Cop-ling Mills and wrongfully affixed and forged the name of Reba Copling Mills to said note and deed of trust; that there was no liability upon the said Reba Copling Mills by reason of the execution and delivery of said note and deed of trust, and that the said J. L. McCaffrey, Sr., was not entitled to recover any amount from the said Reba Copling Mills. The chancellor further found that John B. Mills did not affix the signature of his wife, Reba Copling Mills, to the note and deed of trust, but in the opinion of the court some woman, other than the said Reba Copling Mills, impersonated the said Reba Copling Mills and wrongfully affixed and forged the name of Mrs. Mills to the note and deed of trust.
A final decree was entered in conformity with the chancellor’s findings on September 29, 1962. From that ■' decree J. L. McCaffrey, Sr., and Daniel W. Dabbs, Trustee, defendants in the suit for cancellation of the above mentioned note and deed of trust, and complainants in the suit for foreclosure, have prosecuted this appeal. The complainant-defendant, John B. Mills, has also filed a cross appeal and a cross-assignment of errors.
After a careful review of the testimony we think there is ample evidence in the record to support the chancellor’s finding that the complainant, Mrs. Reba Copling Mills, did not execute the above mentioned note and deed of trust, and that there was no liability upon Mrs. Reba Copling Mills by reason of the execution and delivery of the note and deed of trust.
In view of the nature of the appellants’ assignments of error it is necessary that we summarize briefly the testimony of the witnesses.
The defendant, J. L. McCaffrey, Sr., being called to testify as an adverse witness by the plaintiff, testified that the note and deed of trust were executed in his private office in the 1900 block on Edwards Street, in the City of Hattiesburg, between the hours of one o ’clock and three o’clock on the afternoon of March 14, 1962; that John B. Mills and Mrs. Mills were sitting directly across from him at the time they signed the note and deed of trust. McCaffrey stated that the $7,000 called for in the note represented the value of the chickens that Mills, who was a truck driver for Davis Poultry Company, had taken from McCaffrey’s Columbia store and sold for cash money, without permission and without McCaffrey knowing it; that the chickens that Mills had sold were chickens assigned to the Columbia store by the Davis Poultry Company, Mills’ employer. Mc-Caffrey stated that he had a private detective checking into the matter for a period of several weeks; and Mills
Mrs. Reba Copling Mills, testifying in her own behalf, stated.that she and her husband had been married about four years; that they lived in the Sunrise Community about two miles from the City of Hattiesburg, on a lot that she had bought from her father and mother in 1957; that there were two houses on the land; that her father and mother still lived in the house that was on the land at the time she purchased the property, and she and her husband were living in another house which they were in the process of building at the time of the trial. She stated that she had never seen either the note or the original deed of trust' prior to the date of the trial; that she had only seen a record copy of the deed of trust at the courthouse. She stated that she did not sign her name to the note or the deed of trust; that the first time she knew anything about the note
Mrs. Mills identified her signature on a large number of cancelled checks which appear in the record, and also several other instruments admitted to be genuine, including a will which she had executed on July 5, 1957, a claim for hospital expenses which she had presented to an insurance company on May 9, 1957, and homestead exemption applications which she had filed for the years 1959, 1960, 1961 and 1962, and the bill of complaint filed in this cause. She stated that she and her husband started building the house in which they were living about
John B. Mills testified that he signed the note and deed of trust in Mr. McCaffrey’s office between 12:30 and 1:00 P.M. on March 14, 1962. He stated that he also signed Mrs. Reba Copling Mills’ name to the instruments. There was no one in the office with him at that time except Mr. McCaffrey. Mr. McCaffrey then called a lady to the door and handed her the papers. Mills did not know who the lady was. He did not see the papers any more after that. The figure $7,000 was not in the deed of trust at the time he signed it. Mills was asked to tell the court why he signed the $7,000 note and deed of trust. He stated that sometime prior to March 14 he received a telephone call from the plant where he worked and he was told that Mr. McCaffrey wanted to see him. When he got off from work he went to Mr. McCaffrey’s office and Mr. McCaffrey told him that he had a warrant for his arrest, and about that time another man came in, who introduced himself as “John Box”, but his real name was “John Ryder.” Mills stated that the man told him that he was a former FBT man, and he could send him to jail. Ryder and
On cross-examination Mills again was asked why he told Mr. McCaffrey and Mr. Ryder that he had sold the stolen chickens. His answer was, “because they
Gilbert J. Fortier of New Orleans, Louisiana, a professional examiner of questioned documents and a handwriting expert, testified that he had examined the signature of Reba Copling Mills on the note and the deed of trust referred to in the pleadings, and also the signature of Mrs. Mills on each of the cancelled checks and other instruments offered in evidence by the complainant which contained her genuine signature, and that in his opinion the signatures of Reba Copling Mills on the note and deed of trust were not written by the person who wrote the signature “Reba Copling Mills” on the cancelled checks and other instruments recognized as genuine. The witness then explained in detail the variations in the handwriting and stated the reasons for his conclusion that the signatures of Reba Copling Mills which appeared on the note and the deed of trust were not written by her.
Eight witnesses were called to testify on behalf of the defendants.
Rufus Alvis Scott testified that he had a degree as a graphoanalytical psychologist from the school of Graphoanalysis, Springfield, Missouri, and that he had examined the two signatures on the note and on the deed of trust, and in his opinion the signatures of John B. Mills and Reba Copling Mills were written by two different people. He had also compared the signature of Mrs. Reba Copling Mills on the two instruments with her signature on the pleadings and in his opinion they were written by the same person.
J. L. McCaffrey, Sr., was recalled to testify as a witness in his own behalf, and upon direct examination by his own attorney, McCaffrey stated that the note and deed of trust which Mr. and Mrs. Mills signed were prepared in McCaffrey’s insurance office but the papers were signed in his inner office. McCaffrey stated that when he returned to his office after the lunch hour on March 14 Mr. and Mrs. Mills were there waiting for him, that Barbara McCaffrey was called in to take the acknowledgments; and the instruments were then signed
McCaffrey was asked if a tape recording had been made of the statements given to him by Mr. Mills. His answer was that such tape recording had been made. McCaffrey then produced the tapes. He again stated that no threats had been made against Mr. Mills and no promise of reward had been offered to him. He stated that Mills knew at the time the tape recording was made that his statements were being recorded, and the record was played back to him after the recording had been completed. The tape recording showed that Mills admitted that he had sold the chickens to Stringer Brothers and Doc Beecham’s Supermarket.
Several office employees of McCaffrey were called to testify as witnesses for the appellants on the issue as to whether the complainant Reba Copling Mills was the person who appeared at Mr. McCaffrey’s office on March 14, 1962, and signed her name to the note and deed of trust.
Richard W. Madison, who handled accounts renewable for McCaffrejr’s Pood Market, testified that he had seen Mr. Mills in Mr. McCaffrey’s private office on two occasions. He was in the office on one occasion when Mr. McCaffrey and Mr. Mills were talking. They had made a tape recording, and he heard Mr. Mills admit that the value of the chickens he had taken was over $7,000. He was in the office on another occasion when Mrs. Mills was there, and there were papers on the desk. He had never seen the lady before. Madison stated that he believed the lady who was pointed out to him in the courtroom was the person he saw in Mr. McCaffrey’s office. “That’s her, I believe. Her hair is done differently and she is wearing glasses now, but her features to me — I believe it’s Mrs. Mills.” On cross-examination, he stated: “I am positive that her hair-do was different than it was and she did not have
Walter Brewer testified that he kept books for Mc-Caffrey’s Tire Store and was one of the musicians on McCaffrey’s “Showtime,” that he had seen Mrs. Mills one time when she came there with Mr. Mills at the lunch hour. The witness was asked whether the lady sitting between John Mills and his attorney was the same lady whom he had seen at McCaffrey’s office. His answer was: “Looks just like her to me. * * # To the best of my memory, that’s her.” On cross-examination the witness was asked, “Did she have on glasses?” His answer was, “I don’t believe she did.”
Teresa Walker, 17 years of age, testified that she was working at McCaffrey’s Insurance Agency; that she had been working there for a period of nine months; that she was sitting at her desk and saw Mr. and Mrs. Mills going out of Mr. McCaffrey’s office one time, and she saw them going in the office the second time. She could not be sure the couple she saw in the courtroom were the ones she saw the day the papers were signed. On cross-examination the witness stated that she saw the lady who came to Mr. McCaffrey office from the back and she could not say whether it was Mrs. Mills or not. She knew that there was a woman over there, but she could not say that the woman in the courtroom was the woman she saw leaving Mr. McCaffrey’s office the day the papers were signed.
Milliette Reese, who handled the advertising for the McCaffrey Insurance Company, testified that she became acquainted with Reba Copling Mills about three years before the trial; that Mrs. Mills was a waitress at the Steak House at that time and she saw her frequently when she went to the Steak House for coffee. Miss Reese stated that she had seen Mrs. Mills at Mr. Mc-Caffrey’s office one time, and that was on the occasion when Mr. and Mrs. Mills came to Mr. McCaffrey’s office to sign the note and deed of trust on March 14, 1962. She said: “I was sitting at my desk and I looked up and saw Mrs. Mills come in and I looked her right in the eyes and she looked at me and really didn’t even acknowledge my existence and walked on by into Mr. McCaffrey’s office.” She stated that Mrs. Mills was the lady who was sitting in the courtroom. Miss Reese stated that she was present when a part of the tape recordings referred to by Mr. McCaffrey were made, and she heard Mr. Mills say that he was a driver for Davis Poultry, and that in the past three years he had stolen chickens from Mr. McCaffrey and had sold them to other people, that he had taken about $7,000 worth.
Four witnesses were called to testify for the appellee in rebuttal of the testimony offered on behalf of the appellants.
Mrs. Bobby Liverett testified that she was a sister-in-law of Mrs. Reba Copling Mills, that her husband was a brother of Mrs. Reba Copling Mills; that she lived in the Sunrise Community about a mile from Mrs. Reba Copling Mills’ home; that she saw Mrs. Reba Copling Mills on March 14 about 7:30 A.M.; that she had taken her children to school early that morning because they had missed the school bus; that she came back by Mrs. Mills’ home and stopped for a visit and remained there until about 2:30 P.M. A truck was driven into the yard about 9 o’clock and Mrs. Chester Mills, Mrs. Reba Mills’ mother-in-law, and Mrs. "Walter Cochran, Mrs. Reba Mills’ sister-in-law, who lived at Clara in Wayne County, got out of the truck and came into the house. The purpose of their visit that day was to have Mrs. Reba Mills take her mother-in-law to Dr. Dearman’s office to have her glasses changed. Mrs. Reba Mills and her mother-in-law left the house a little after 10 o’clock and returned about 11:45, and Mrs. Reba Mills did not leave her house again while the witness was there. The witness stated that John B. Mills came home for lunch about ten minutes after twelve and stayed about 15 minutes. He appeared to be upset. He seemed to be under a nervous strain and did not talk to anybody. He remained at the house about 15 minutes.
John Harvey Mills testified that he lived in Wayne County, and that he brought his sister-in-law, Mrs. Chester Mills, and her daughter, Mrs. Walter Cochran,
Mrs. Chester Mills testified that she was the mother of John B. Mills, and that she lived at Clara in Wayne County; that she had John Harvey Mills, her brother-in-law, bring her to Mrs. Beba Copling Mills’ home near Hattiesburg on March 14, 1962, for an eye examination by Dr. Walter D. Dearman; that she arrived at Mrs. Beba Mills’ house around 9 o’clock and got Mrs. Beba Mills to carry her to Dr. Dearman’s office; that she and Mrs. Beba Mills came back to Mrs. Beba Mills’ home between 11:30 and 11:45. The witness further stated that Mrs. Beba Mills remained at her home from the time she returned from the doctor’s office until the witness left about 4:30 P.M. to return to her own home at Clara. The witness stated that her appointment to see the doctor was made for March 14 because that was Mrs. Beba Mills’ day off from work.
Mrs. Walter Cochran testified that she lived at Clara in Wayne County; that she came to Hattiesburg on March 14 with her mother, Mrs. Chester Mills, to visit her sister-in-law, Mrs. Beba Mills; that John Harvey Mills drove the truck in which they were riding; that they arrived at the John B. Mills’ home near Hattiesburg around 9:00 or 9:30 A.M.; that Mrs. Bobby Liverett was at the John B. Mills home when they arrived, and she and Mrs. Liverett cooked dinner for the family while Mrs. Beba Mills and Mrs. Chester Mills went to see the eye doctor; that Mrs. Beba Mills and Mrs. Chester Mills left the John B. Mills’ home arount 10 o’clock and got
Mrs. Reba Mills was recalled by her own attorney for further examination in rebuttal of the testimony of the appellant’s witnesses concerning her alleged visits to McCaffrey’s office and the signing of the note and deed of trust. She again stated that she had never been in Mr. McCaffrey’s office at any time, and she did not know Mr. McCaffrey personally until she saw him in the courtroom on the first day of the trial. She again stated that she went to Dr. Dearman’s office with her mother-in-law during the morning of March 14 about 10 o’clock to have her eyes examined; that she returned to her home at a quarter before 12 o’clock, and she did not leave the house again at any time after that; that she knew nothing’ about the note and deed of trust until April 16, when she received the letter from Mr. Mc-Caffrey’s attorney in which he stated that the papers had been turned over to him for collection or foreclosure of the deed of trust. Upon being questioned by the court she stated that she had worn glasses constantly since 1941; that she wore them constantly because if she went without them she would suffer headaches and her eyes would hurt; that she never went about town or any place without them.
The basic issue which the chancellor had to decide in this case was a disputed issue of fact as to whether or not the purported signatures of Mrs. Reba Copling Mills on the note and on the deed of trust dated March 14, 1962, were forgeries. It can be readily seen from what we have stated above that there was a direct conflict in the testimony of the witnesses on that issue.
The chancellor in this case was the trier of the facts, and the.chancellor had a right to believe the testimony of Mrs. Mills and the several witnesses who testified on her behalf. The chancellor had before him not only the testimony of the witnesses who testified on behalf of each of the respective parties, but also the questioned documents, showing the signatures alleged to have been forged, and numerous other instruments, including can-celled checks, showing the genuine signature of Mrs. Beba Copling Mills, and the chancellor found that the purported signatures of Mrs. Beba Copling Mills on the note and deed of trust were forgeries. We think it cannot be said that the chancellor’s finding that the purported signatures were forgeries was manifestly wrong or against the overwhelming weight of the evidence.
The fact that the chancellor found that the forgeries had been committed, not by John B. Mills, as alleged by the complainant in her bill upon information and belief, but by some woman other that Mrs. Beba Copling Mills, who had wrongfully impersonated Mrs. Beba Cop-ling Mills and had wrongfully affixed and forged her name to the note and deed of trust, in no way affected
For the reasons stated above the decree of the lower court will be affirmed on the appellants’ direct appeal.
The appellee and cross-appellant, John B. Mills, in his cross-assignment of errors, has assigned and argued three points as grounds for reversal of that part of the decree of the lower court awarding judgment against him in favor of J. L. McCaffrey, Sr., for the sum called for in the note dated March 14, 1964, as follows: (1) That the appellant failed to prove that cross-appellant was indebted to him; (2) that the note for $7,000 was voidable at the option of the cross-appellant for lack of consideration; and (3) that the note was voidable at the election of the cross-appellant because of duress.
We have given careful consideration to each of the three points mentioned in the cross-assignment of errors, and we think it cannot be said that the chancellor was manifestly wrong in his finding that the note was executed by John B. Mills for a valuable consideration, and that the note was a valid obligation of John B. Mills, and that McCaffrey was entitled to a decree against Mills for the amount sued for.
We find no reversible error in-the record, and the judgment of the lower court .is therefore affirmed on the appellants’ direct appeal and on the appellees’ cross-appeal.
Affirmed on direct appeal and on cross-appeal.