Taylor v. Alliance Trust Co.

71 Miss. 694 | Miss. | 1893

Cooper, J.,

delivered the opinion of the court.

It is not suggested by the evidence in the record, nor in argument of counsel, that the appellee has at any time acquired or owned lands in this state in excess of the quantity which it might have owned had it been a corporation organized under the laws of this state. But if that fact appeared, it would confer no right upon appellant to make the objection. The State alone can apply the corrective. Quitman County v. Stritze, 70 Miss., 320.

Nor is it true that there existed any public policy of the state evidenced by legislation, by reason of which the appellee was precluded from acquiring real estate in this state. Chapter 38 of the code of 1880 contained general provisions for the organization of incorporations for certain purposes. By the act of March 7, 1882 (Laws, p. 50), it was provided that “all corporations, except cities and towns, and express, telegraph and railroad companies may be created in the mode and manner, and with all the rights, honors and privileges and immunities, as provided in chapter 38 of the code of 1880.” By the same act the right was conferred upon any company so organized to “ hold and own real and personal property to any amount, and to sell, exchange and incumber the same.” It is idle to talk of the existence of a public policy against ownership of lands by corporations in the light of this legislation, by which such ownership was permitted to an unlimited extent, and was, in fact, invited and encouraged by the simplicity of the statutes under which corporations might be formed. We fail to appreciate the distinction sought to be drawn by counsel between domestic corporations and those created by other states. It cannot be said that it is against the policy of this state to permit corporations of other states to do business here, especially where the business they are organized to do is directly encouraged to be done by domestic corporations. On the contrary, the rule of comity may be said Lo be almost universal that corporations created by one state may transact its business in any other state in which, if the corporation was a domestic one, the business might there be lawfully conducted.

We have not found the authority relied on by counsel— White v. Miller (Minn.), 54 N. W. Rep., 736 — in which it is said to have been decided that “ a negotiable promissory note, due and payable in the future according to its terms, cannot be brought to immediate maturity through a clause in a mortgage, given to secure it, authorizing the mortgagee to declare the debt due on default in any of the provisions of the mortgage.” If the suit in that case was upon the note, it may be that the decision was correct; but, if the decision was that the mortgagee-could not, though authorized so to do by the terms of the deed, proceed to subject the security to the satisfaction of the debt, we should not follow it, for a contrary practice has always prevailed in this state, and such provisions have been approved. Dunton v. Sharpe, 70 Miss., 850. We see nothing unlawful in such stipulations, and, so long as parties and not the courts are to make contracts, we know no reason why contracts, when made, should not be enforced according to their terms.

We find nothing to invalidate the title of complainant to the lands in controversy, unless it be true that appellant, by her purchase at the execution sale against- S. H. Taylor, acquired title to the land superior to that of complainant. To that inquiry we now proceed. The facts upon which the controversy in this particular rests are these: Prior to the year 1888, one R. D. Freeman, as guardian of Dozier Taylor, loaned to the firm of Freeman Bros, a sum of money, and received therefor the note of said firm, upon which L. T. Freeman, Jane R. Freeman, C. W. Taylor and S. H. Taylor were sureties. Whether the note showed upon its face that the other makers were sureties for Freeman Bros, does not appear; we assume that it does not, but was in the usual form, and that all the subscribers thereto appear as co-makers. In the year 1888, R. D. Freeman, for the use-of C. W. Troy, brought suit on this note against L. T. Freeman, Jane R. Freeman, C. W. Taylor and S. H. Taylor, and .recovered judgment against them for the sum of $2,308,. which judgment was duly enrolled in Lee county. After-wards Mrs. L. T. Freeman paid to the plaintiff in the judgment the sum of $1,500 in full satisfaction thereof, and an entry thereof was made on the judgment-roll in these words :

“ Received of Mrs. L. T. Freeman fifteen hundred dollars ($1,500) in full payment of this judgment, and the same is-fully satisfied, and she is authorized to do therewith as she-sees proper. J. Q. Robins, Atfy for Plaintiff.”

When this entry was made does not appear, but some time afterwards S. H. Taylor, who owned the lands in controversy, executed two certain deeds of trust upon the same to-. John-1. Dunn, trustee for the Lombard Investment Company, to secure the payment of about the sum of $3,000, which he then borrowed from said company. These incumbrances were duly recorded, and, upon breach of condition,, a sale thereunder was made by a substituted trustee, at which the complainant became the purchaser.

After the execution and recording of these deeds of trust, but before the sale thereunder, Mrs. L. T. Freeman, who had paid off the judgment at law as above stated, assigned the-same to the appellant, E. B. R. Taylor, who, on the fourteenth day of July, 1891, made and filed with the clerk of the court in which the judgment had been rendered, an affidavit, setting forth the fact that said judgment had been rendered; that the defendants were jointly and severally liable thereon, and that it had been paid by the defendant, L. T. Freeman, who afterwards assigned the same to affiant, and prayed the issuance of an execution thereunder for her use and benefit. ' IJpon the filing of this affidavit, an execution was issued as prayed, which was levied upon the lands in controversy as the pi’operty of S. H. Taylor, and a sale thereof was made, and at the sale the appellant, E. B. E. Taylor, became the purchaser thereof at the price of $210. E. B. E. Taylor conveyed a part of the land so bought to appellants, Clarke & Clarke. The execution sale was made in the year 1891, and its effect is determinable 'by the provision of the code of 1880, in which no express provision is made for the protection of the rights of bona fide purchasers, as is done by the code of 1892, § 3280.

By the code of 1880, § 998, it was provided as follows: “ When any judgment shall be rendei’ed, or shall have been rendered, against a principal debtor and his sureties, or against the sureties only, and any one or more of such sureties shall pay and satisfy the same, such judgment shall, by operation of this act, be transferred and assigned to the surety or sureties so paying off and satisfying the same, who shall have all the liens and equities which the judgment creditor may have had by virtue of such judgment, o,r of the debt or claim on which it is founded; and such surety, on making affidavit of his suretyship and of the payment of such judgment, and filing .the same, together with the evidence of such payment, with the clerk of the circuit court in which the judgment was rendered, shall be entitled to have execution issued on such judgment, in the name of the plaintiff against the defendants on the record, in the same manner as if the judgment had not been satisfied; and the clerk shall indorse thereon that the same is issued for the use of the surety so having paid such judgment; and the sheriff'shall proceed to collect the same from the principal debtor therein, for the use of such surety, if the principal debtor be a party to such judgment; and if the principal debtor be not a party to such judgment, or if, being a party, no property can be found to satisfy the execution, then he shall collect .a ratable proportion of the money from each of the co-sureties, for the use aforesaid.” By § 1140 the benefits of this section were exteuded to other joint execution debtors.

The chancellor held that this statute, being in derogation of the common law, was to be strictly construed, and, since the affidavit for the execution was not made by the surety.by whom the judgment was paid, but by her assignee, the execution was not authorized by the statute, and the sale thereunder was void. The view we take of the rights of the parties makes it unnecessary for us to. explore the perplexing field of inquiry in reference to the distinction between void and voidable proceedings. We are of opinion that no sale of the land could have been made under the execution, if it had been issued in strict conformity to the statute, which would have affected the right of the Lombard Investment Company under the deed of trust it secured from S. H. Taylor, and that the complainant, who purchased at a sale under such deed, is equally protected.

The purpose and effect of the statute was to preserve to the surety the right to secure at law, and by the execution of the judgment, the same relief which, in the absence of the statute, he might have had by resort to a court of equity. The mere payment of the judgment by the surety ■would not, under the statute, operate to discharge the lien of the judgment, either upon the property of the principal or of the co-sureties, pai’ties thereto; and if nothing but payment had occurred, the judgment itself, together with the right to execution thereof, would have been preserved. But more than this was done, for there was a formal and express notation made upon the record of the judgment that it had been paid and discharged. This entry, the answer of the defendant admits, was procured to be made by Mrs. Freeman, the party by whom tlie payment was made. In Yates v. Mead, 68 Miss., 787, an entry was made upon the judgment-roll that the same had been “ settled,” but, since it did not appear that this had been done by the indorser paying the judgment, it was held that he was not affected thereby. But in the present case the party paying the judgment caused satisfaction thereof to be certified, and neither she nor those claiming under her can assert, as against a bona fide purchaser, that the judgment lien on the lands bound by it was not discharged.

The decree is affirmed.