West v. Union Naval Stores Co.

77 So. 609 | Miss. | 1917

Cook, P. J.,

delivered the opinion of the court.

The appellant filed in the chancery court of Wayne county his bill of complaint,- in which he sought the aid of the court to confirm and quiet his title to certain lands described in the bill. Various parties were made parties defendant, but this appeal concerns tbe Union Naval Stores Company alone. Tbe title of appellant to tbe land in controversy rests and depends upon tbe validity of a certain trustee’s deed, which deed, in turn depends upon tbe validity of tbe transfer of a deed of trust executed by John I. West, Sr., and bis wife, to secure an indebtedness due by Mr. West to tbe Bank of Waynesboro, and the steps precedent to- tbe foreclosure of the deed of trust.

First, tbe Union Naval Stores Company claimed that it was a purchaser for value, without notice, of tbe land described in tbe bill of complaint, and made its answer a cross-bill, praying for a confirmation of its title to tbe land. Upon final bearing tbe court dismissed appellant’s bill and confirmed tbe alleged-title of the Naval Stores Company to tbe land. There are many details leading up to tbe final decree, but we have decided to cut out everything except such facts as are necessary' to a proper understanding of our conclusions.

Appellees challenged tbe legality of tbe transfer of tbe deed of trust executed by John I. West, Sr., to tbe Bank of Waynesboro. It seems that this assignment was made by tbe vice president of tbe bank, acknowledged by him and recorded in tbe records of Wayne county, by writing tbe same on tbe margin of tbe récord of tbe deed of trust. In other words, tbe assignment was not recorded as a separate instrument, but was merely written on tbe margin of tbe record of tbe deed of trust itself. It further appears that tbe trustee named in tbe deed of trust refused to act and bis refusal was written in tbe back of tbe deed of trust, and also on tbe margin of tbe record of tbe deed of trust. It also appears that tbe assignee of the deed of trust appointed another trustee, and this appointment appears of record in tbe same way as does tbe refusal of tbe original trustee to act.

Appellee contends here that the assignmment of the deed of trust by the Bank of Waynesboro was void, because the corporate seal of the bank was not attached to the assignment. To support this contention our attention is directed to section 2793, Code of 1906 (Section 2294, Hemingway’s Code) which reads:

“Acknowledgment or Proof Necessary to Recording.— A written instrument of or concerning the sale of lands, whether the same be made for passing an estate of freehold or inheritance, or for a term of years, or for any other purpose, except in cases specially provided for by law, or any writing conveying personal .estate, shall not be admitted to record in the clerk’s office unless the execution thereof be first acknowledged or proved, and the acknowledgment o.r proof duly certified by an officer competent to take the same in the manner directed by this chapter and any. such instrument which is admitted to record without such acknowledgment or proof shall not be notice to creditors or subsequent purchasers for a valuable consideration.”

Query — Was this so-called assignment of the deed of trust, in fact, an assignment of the deed of trust, or was it merely an assignment of the debt secured thereby? Be that as it may, we find ourselves unable to approve the reasoning of learned counsel for appellee. As we understand counsel, they contend that the assignment of the trust deed should be recorded as other instruments conveying title are recorded — that is to say, as a' separate instrument — and that the record here being made on the record of the original deed of trust is utterly void.

The object and purpose of recording such instruments is to give notice of the state of the title to all persons interested or dealing with the thing conveyed, and it seems to us that one interested in the title to the land involved in this litigation would naturally turn to the record of the first incumbrance upon the same,. and finding written on the record there notice of the assignment of the same he would be put upon notice of the facts. The statute does not require that assignments of recorded instruments shall be recorded on any particular page or pages of the record books.

In this case, however, the original trust deed, the assignment of same, the refusal of the original trustee to act, and the appointment of another trustee, all appear on the same page of the record, thus affording an easy way for interested persons to ascertain the state of the title. The transfer of the record debt in this case was, in form, perhaps, a transfer of the deed of trust, yet looking through form to' substance, it is quite clear that it was intended as a transfer of the debt, which carried with it the security, and this appears of record as' required by section 2794, Code of 1906.

We do not believe that the failure to place the corporate seal on the assignment of the deed of trust affects the title. Littelle v. Creek Lumber Co., 99 Miss. 241, 54 So. 841, is not in point. The suit in that case was by ejectment, and a careful reading of that case will show that the principle there announced does not apply to this case. This is a proceeding in equity, and technical points raised in the Littelle Case will not avail here. McIver v. Abernathy, 66 Miss. 83, 5 So. 519.

The assignment by a corporation of a debt secured by a deed of trust is not required to be made under seal. The debt to a banking corporation is usually evidenced by a note, and aii assignment of the note does not require a seal. A corporation, of course, cannot convey real estate without affixing its seal to the conveyance. In this case no real estate was conveyed by the corporation; the conveyance was made by the trustee. So we conclude that the learned chancellor erred in refusing to confirm the title of appellant, and therefore he also erred in confirming the alleged title of appellee.

We see no reason to remand this ease; it appearing that there is no dispute about tbe facts, tbe contestants only disagreeing as to tbe legal consequence of the known facts. The decree of the chancellor is set aside, and a decree will be entered here, confirming and quieting the title of appellant to the land described in the bill of complaint.

Reversed, and decree here.