Schwartz v. Smith

99 So. 436 | Miss. | 1924

Cook, J.,

delivered the opinion of the court.

In January, 1920, the appellee, John T. Smith, purchased a tract of land in Bolivar county, Miss., from Phillip Guerri and wife, and as á part of the consideration therefore he executed his promissory note for eleven thousand five hundred dollars the payment of which was Secured by a vendor’s lien reserved in the deed conveying the land to him. This note was payable at the Cleveland State Bank, of Cleveland, Miss., and the deed to appellee was recorded in Bolivar county. Before the maturity of the note Guerri sold it to the appellant, S. Schwartz, a citizen of the state of New Jersey, and it was duly transferred to Schwartz by indorsement and delivery, but the assignment thereof was never recorded or entered on the margin of the record of the lien securing it..' When the note matured, a payment was made thereon, and by agreement the balance was extended for one year. At the expiration of the period of extension, the appellee filed an attachment suit in the circuit court in which he sought to recover from the appellant, Schwartz, the ten per centum forfeiture declared in section 2795, Code of 1906 (section 2296, Hemingway’s Code), for failure to note the assignment of the indebtedness on the margin of the record of the lien securing the same, and he secured the issuance of a writ of garnishment directed to the Cleveland State Bank, where the note was held for collection. He then proceeded to the hank and paid the balance due on the note, and the writ of garnishment was immediately served on the bank, the attachment being for the sum of one thousand one hundred fifty dollars, ten per cent, of the amount of the original note, alleged by appellee to be due him by reason of the failure of the appellant to have the fact of the assignment of the note to him noted on the record. Thereafter a trial on the merits was had, and at the conclusion of the evidence the defendant requested a peremptory instruction, which was refused, but the court granted a peremptory instruction directing the jury to find for the plaintiff for the one thousand one hundred fifty dollars sued for, with interest, and, from the judgment entered in pursuance of this instruction, this appeal was prosecuted.

This ease involves the construction and application of section 2795, Code of 1906 (section 2296, Hemingway’s Code), which provides that the assignee of any indebted"ness secured by mortgage, deed of trust, or other lien of record shall forfeit to the debtor ten per cent, of the amount of such indebtedness, unless he shall, within thirty days from the day of said assignment, enter the assignment on the margin of the record of the lien, or have the same acknowledged and filed for record within said time.

After' the decision of this case in the court below, this court, in the case of Hughes v. Kaw Investment Co., 97 So. 465, had under consideration the identical question now presented, and it was there held that “the use of the word ‘assignment’ in-this statute referred only to nonnegotiable instruments, and was not meant' to, and does not, include the various indorsements of negotiable instruments,” Justice Ethridge and the writer dissenting from that part of the opinion so holding.

In the elaborate and very able briefs of counsel for appellee, the correctness of the construction placed upon this statute in Hughes v. Kaw Investment Co., supra, is assailed, and we are urged to overrule it in so far as it holds that the statute has no application to negotiable instruments. On account of its importance and the divergence of view of the judges in the decision of the Kaw Investment Company Case the question has been again considered by the co.urt en Banc, and the majority of the judges adhere to the views expressed by them in that case. Consequently, it is controlling here, and is decisive of the case at bar. The note which was the basis of the present suit was negotiable, and upon the authority of Hughes v. Kaw Investment Co., supra, it follows that this statute has no application to this note, and that the peremptory instruction requested by the appellant should have been granted.

The judgment of the court below will therefore be reversed, and judgment entered here for appellant.

Reversed, and judgment for appellant.