Stringer v. Price

108 So. 431 | Miss. | 1926

^* Corpus Juris-Cyc. References: Banks and Banking, 7 C.J., p. 482, n. 64 New, Chattel Mortgages, 11 C.J., p. 610, n. 50 New. This is a replevin suit which was begun in the court of a justice of the peace of Jefferson Davis county, seeking to recover the possession of certain personal property covered by a deed of trust executed by the defendant and his wife in favor of the Oakvale Bank as beneficiary. The suit was instituted by the appellant, H.C. Stringer, as substituted trustee in said deed of trust, and, at the conclusion of the evidence offered by the plaintiff, the court sustained a motion to exclude this evidence and direct a verdict for the defendant on the ground that no proper substitution of the plaintiff as trustee was shown.

The deed of trust under which the appellant was seeking to recover possession of this property conveyed the property in trust to J.A. Kelly, and provided that the beneficiary, "the Oakvale Bank, or their legal representatives, can, at any time they may desire, appoint a trustee in the place of J.A. Kelly or any succeeding trustee." It also contained the further provision that:

"Should the trustee at any time believe said property, or any part thereof, endangered as a security for said payments, he shall take the same into his possession and hold until said payments are made, or until the said property is sold as aforesaid, but, until demanded by the trustee for either of the purposes aforesaid, said party of the first part can hold the same."

The appointment upon which the appellant relies for his authority to prosecute this suit appears in a writing addressed to the chancery clerk of the county, and signed by J.L. Parkman as president and liquidating agent of the Oakvale Bank, an insolvent institution then being liquidated under the direction of the state banking department; this writing being in the following words and figures, to-wit:

"Oakvale, Miss., Nov. 13, 1925, A.D.

"Hon. R.E. Dale, Prentiss, Miss. — Dear Sir: Please refer to the following pages of the following records in your office and substitute H.C. Stringer as trustee in the place of G.M. Milloy, G.C. Bass, and J.A. Kelly, respectively, and let the following appear as directed by law on the face of said records, to-wit:

"H.C. Stringer is hereby appointed and substituted as trustee in the place of ____, he being more convenient to serve.

"The deeds of trust, the book and page number of each is ____.

"Joe Buckley to Oakvale Bank, G.C. Bass, trustee, recorded at page 531, Chattel Deed Record No. 38; A.E. Blanchard et ux. to Oakvale Bank, G.M. Milloy, trustee, recorded at page No. 530 in Chattel Deed Record No. 38; and John Price et ux. to Oakvale Bank, J.A. Kelly trustee, recorded in book (Chattel) No. 41, on

"Thanking you in advance for your usual promptness, I beg to remain sincerely yours, J.L. Parkman, President of Oakvale Bank and Liquidating Agent."

There are but two questions presented and argued in the briefs of counsel: First, did J.L. Parkman, either as president of Oakvale Bank or as agent in charge of the liquidation thereof, have the power to substitute a trustee in the place of the trustee originally named in the deed of trust in question, and second, if he possessed such power, was the exercise of it by him in this case sufficient to vest H.C. Stringer, the substituted trustee, with the power to maintain a suit in replevin for the property covered.

The power of appointment was conferred upon the Oakvale Bank, a corporation, or its legal representatives. The duly appointed liquidating agent in charge of the affairs of this insolvent bank undertook to exercise this power, and, to determine his right so to do, it is necessary to consider the meaning of the phrase "legal representatives" in the light of the decisions of this court. In the case of Allen v. AllianceTrust Co., 84 Miss. 319, 36 So. 285, in discussing the meaning of this phrase, the court said:

"It usually means executors or administrators; but it cannot, of course, mean executors and administrators only, in whatever instrument it may appear, and with reference to all the different subject-matters treated of in the multitude of varying instruments, and no matter what the plain purpose of the maker of the instrument using the phrase may be in using it. The court construing the meaning of the phrase arising upon the face of a particular instrument having reference to a particular subject-matter must seek to find the purpose of the party using it in using it as he does. . . . So the authorities clearly demonstrate that it may, in various circumstances, mean executors, administrators, heirs, legatees, assignees, and devisees, even while legatees or devisees are strangers; in short, it may mean any person or corporation taking the beneficial interest in property, real or personal. . . . As we have said in the outset, any person or corporation which takes beneficially from another person or corporation may, if the particular instrument and the particular subject-matter show that plainly to be the purpose in using the phrase, satisfy the meaning of this phrase `legal representatives,' and in that view the assignee of a corporation may be the legal representative in a proper case. So those appointed by statute or otherwise to wind up the business of an insolvent or dissolved corporation may be its legal representatives. . . ."

The liquidating agent of this insolvent bank was charged with the duty of collecting its assets and winding up its business under the direction of the state banking department, and he was clearly its legal representative within the purview of the power conferred by the deed of trust.

Upon the other question presented for decision, we think the appointment of a substituted trustee, as it appears in the writing offered in evidence, was sufficient to vest him with power to maintain a suit in replevin for the property covered by the deed of trust.

Under the direction of the liquidation agent, the chancery clerk of the county entered on the margin of the record of the deed of trust the fact of the appointment of the appellant as substituted trustee, but it may be readily conceded that this added nothing to the effectiveness of the previous appointment. Section 2773, Code of 1906 (section 2277, Hemingway's Code), provides that sales of land made under deeds of trust shall be void unless, before the first notice of sale shall have been posted or published, the substitution shall appear of record in the chancery clerk's office of the county where the land is situated, but we know of no such statutory requirement in the case of chattel deeds of trust. However, if the strict statutory requirements in case of land sales should be applied to sales under chattel deeds of trust, it would not militate against the right of the appellant to maintain this suit. He is not now attempting to sell the property, but by this proceeding is only attempting to exercise the power conferred upon the trustee to take possession of the property covered by the deed of trust whenever he may believe the property, or any part thereof, endangered as security for the payments secured thereby. We think the writing offered in evidence constitutes a sufficient appointment of the appellant as substituted trustee, and that he was thereby authorized to prosecute this suit to recover possession of the property covered by the deed of trust.

The judgment of the court below will therefore be reversed, and the cause remanded.

Reversed and remanded.