Ross v. Taylor, No. 21498

No. 21498 | Miss. | Oct 15, 1920

Sam C. Cook, P. J.,

deliyered the opinion of the court.

The appellee based his suit'upon the following bill of complaint, viz.:

“The original bill of complaint of S. C. Taylor, a citizen- and resident of the second judicial district of Bolivar county, state of Mississippi, as exhibited against IT. L. Ross, whose residence and post office are to the complainant unknown., and W. L. Ross and W. A. Smith, citizens .and residents of the said second, judicial district of Bolivar county, Mississippi, would respectfully state and show unto the court the following grounds for equitable relief:

“The complainant would state and show unto the court that he is a planter, engaged in the business of raising cotton and corn; that he is also the owner of sundry tracts of land in this and other counties; that the defendant H. L. Ross was heretofore a planter in this county., and that he rented sundry tracts of land from the complainant. The complainant would show unto the court that heretofore, during the month of October in the year 1919, the defendant IT. L. Ross was indebted unto the Planters’ Bank of Shaw, Miss., on a certain promissory note for approximately four thousand dollalrs; that the complainant ivas an indorser on the aforesaid promissory note and liable for its payment; that the complainant had indorsed the said note because of the fact that the said IT. L. Ross was renting from him and he desired to assist him in his business and make the same a success, if possible. The complainant would state and show that he ivas desirous of seeing the said note at the said Planters’ Bank of Shaw paid, but that the said H. L. Ross informed him that he was not able to pay the aforesaid note, and requested the complainant to indorse another note for him to continue the said note and indebtedness until the spring of-the year 1920. The complainant states that accordingly, not being able to pay out said sum of money at that time, he on the-day of October, 1919, indorsed a note-for the said H. L. Ross,, and delivered it to the said H. L. Ross, with the understanding and agreement that the said neAV note was to be delivered to the said Planters’ Bank of ShaAV, Miss., and take up the note then about to become due. The complainant states that he did not agree to become liable for any neAV debt, and that he only indorsed the said note- for the purpose of paying off the old one.

“The complainant stated that the said IT. L. Ross did not so use the said note; that the said IT. L. Ross used the said note in an entirely different manner; that he, the said IT. L. Ross, Avithout the consent and very much against the Avishes of this complainant, sold the aforesaid promissory note to innocent third parties, and secured funds to Avliicli lie Avas not entitled, and he, the said H. L. Ross, then and there appropriated to his oAvn use the funds derived from said note, in violation of the statutes of this state, and in violation of his duty and obligation to this complainant; that amongst other things the said IT. L. Ross used one thousand tAvo hundred dollars of the said funds to pay the same to the Delta Loan & Investment Company, as hereinafter more specifically set forth. The complainant states that the aforesaid payment to the said company Avas and amounted to an embezzlement on the part of the said IT. L. Ross, and that a court of equity will look into said transactions and permit this complainant to have the benefit of said payment, and to collect said money back as hereinafter more fully set forth.

“Complainant states that thereafter the said H. L. Ross departed from this county for parts unknoAvn, and has not been heard from since; that he disposed of practically all of his property before leaving this county, and Avas and is utterly and entirely insolvent.

“Complainant states that the said one thousand tAvo hundred dollars was paid out in the folloAAdng transaction:

“That heretofore, to-Avit, on or about the 24th day of February, 1919, at Cleveland, Miss., the defendant H. L. Ross made and executed his certain' promissory note in writing, a copy of Avhicli is filed herewith as Exhibit A to this bill of complaint, in favor of W. L. Ross, who is his father, and that thereupon said W. L. Ross and one W. A. Smith, a friend of said H. L. Ross, all being planters in this vicinity, indorsed the said note, and the same Avas thereupon delivered to IT. L. Ross to be used by him for the purpose of obtaining funds to be used in his farming operations. That the said H. L. Ross offered the said note for sale, and sold the same on the strength of the said indorsements. That said note Avas signed by all three of said parties before any money ivas paid on the same, and that all of the said three defendants are liable on the same as makers. That said note Avas sold to the Delta Loan & Investment Company of Greenville,, Mississippi, for a vain-able consideration, and the said company became and was the owner thereof.

“That the aforesaid note exhibit in the sum of one thousand two hundred dollars became and was due on November 1, 1919, and that upon the sale of said note for approximately four thousand dollars said 1-T. L. Ross paid tire sum of one thousand two hundred dollars to go on the aforesaid note, Exhibit A, thus in violation of the rights of this complainant, because of the fact that he desired to protect his' father from loss, knowing that he must abscond. That the said payment of one thousand two hundred dollars was in reality a payment by this complainant’, which, however, was not known at that time by the complainant.

“That thereafter the said H. L. Ross absconded, and on March 1, 1920, the said new note appeared in Memphis, Tenn., in the hands of an innocent third party, P. M. Harper, and that on the said date this complainant paid the said note to protect his credit and to avoid the payment of further attorney’s fees, costs, and expenses. That the said payment by this complainant on March 1st Avas under compulsion, and that he was forced to do so by the wrongful misconduct of the said H;. L. Ross. That this complainant had been forced to pay out the sum of at least eight thousand five hundred dollars because of the Avrongful misconduct and the absconding of the said H. L. Ross.

“That when this complainant was forced to pay the said note on March 1, 1920, he ascertained that said one thousand tAvo hundred dollars had been paid to said Delta Loan & Investment .Company by him as aforesaid, and thereupon he purchased the aforesaid promissory note, paying the balance due, and that the same Avas thereupon assigned and indorsed to the said complainant, as shoAvn thereon. That the complainant is now the owner and holder of the aforesaid promissory note.

“Complainant states that lie has paid all that has been paid on the aforesaid note, and that a court of equity will look through the outward appearances and hold that he is in equity the real and true owner of said note and entitled to recover thereon.

“That this complainant, because of the peculiar circumstances surrounding this transaction, will, in equity, be held to be subrogated to the rights of the iDlelta Loan & Investment. Company, and entitled to collect the full amount due under the aforesaid note, principal, interest, and attorney’s fees.

“Complainant states that he is entitled to the aforesaid equitable protection, and that inasmuch as this court will take jurisdiction to carry out said principles it will assume jurisdiction of this matter for all purposes and grant full and final relief herein.

“Therefore, the premises considered, this complainant prays that process of this court do issue for the aforesaid defendants, H. L. Eoss, W. L. Eoss, and W. A. Smith; that they be summoned to plead, answer, or demur to this bill of complaint on the April rules day, 1920, answer under oath being hereby waived as to each and all of the aforesaid defendants; that the court will hold that this complainant is entitled to recover upon and collect the aforesaid note, Exhibit.A, and thereupon the court will enter a decree, in favor of the complainant and against each and all of the aforesaid defendants, jointly and severally, for the full amount of the principal, interest and attorney’s fees due on the aforesaid note.

“Or, if mistaken in the relief prayed for, then this complainant prays for such other further general or special relief as to this court may seem meet and proper,, and as in duty bound he will ever pray,” etc.

The appellants, defendants below, interposed the following demurrer to the aforesaid bill of complaint, viz.:

“The joint and separate demurrer of WL L. Eoss and W. A. Smith to the bill exhibited against them by S. 0. Taylor : The said defendants demur to said bill, and pray the judgment of the court if they shall make any further answer thereto; and they show the following causes of demurrer to said bill, to-wit:

“First. That there is’ uo equity .in the said bill of complaint.

“Second. If the complainant herein has any rights, they are legal rights, and he has a full, adequate, and complete remedy in a court of law.

“Third. The said W. L. Boss and W. A. Smith, accommodation indorsers, are not liable as makers, as alleged in the said bill of complaint.

“Fourth. For other reasons to be assigned at the hearing of this demurrer.”

This demurrer was overruled, and an appeal to this court granted to settle the principles of the case.

We are of the opinion that the bill of complaint makes a case against the demurrants. The decree of the chancellor, overruling the demurrer, will be affirmed, and the cause will be remanded, with leave to the defendant to answer or plead to the bill of complaint within thirty days after the filing of this mandate in the trial court.

Affirmed and remanded.