Opinion
No. 28852.
November 3, 1930. Suggestion of Error Overruled, December 15, 1930.
1. EQUITY. Bill is not multifarious where rights of all parties spring from common source or are founded on common transaction; equity has jurisdiction to adjust equities between parties where rights alleged in bill spring from common source or common transaction.
A bill is not multifarious where the rights of all the parties to the litigation spring from a common source or are founded on a common transaction, and all rights spring therefrom. In such case equity has jurisdiction to adjust the equities between the parties so as to secure justice to all in one suit.
2. RECEIVERS. Person with knowledge of appointment of receiver in suit to rescind sale, taking deed of trust and converting property, held liable to plaintiff, though not party to suit.
Where a suit is filed in the chancery court for a rescission of sales of land and personal property, and the court sustains the allegations of the bill in such suit and appoints a receiver, the third person who has taken a deed of trust from the party who secured the conveyance of land and personal property to himself should turn the property over to the receiver appointed by the court, although he is not a party to such record, and, if with such knowledge he converts or permits the conversion of the property by his trustee, he is actionable to the original party making such sale for the loss of the property. In such case it is the duty of the third party to so act as not to prejudice the rights of the other parties to the transaction.
APPEAL from chancery court of Covington county. HON. T.P. DALE, Chancellor.
E.L. Dent, of Collins, and T.J. Wills, of Hattiesburg, for appellants.
A bill of complaint is multifarious where the causes of action sued on flow from different and disconnected sources, and the parties defendant thereto are different, or where the cause of action against each of the several defendants is entirely separate and distinct from that against the others.
Clark v. Miller, 105 So. 502; Reese v. Salmon, 99 So. 382; Carter v. Kimbrough, 122 Miss. 543, 84 So. 251; Roberts v. Burwell, 117 Miss. 451, 78 So. 357; Nelms v. Brooks, 105 Miss. 74, 61 So. 985.
T.J. Wills, of Hattiesburg, for appellants.
The courts are always reluctant to interfere with the title of the mortgagee and the rule is that a mortgagee in possession, to whom anything is due will not be disturbed by a receiver.
High on Receivers, page 606, par. 419.
J. Morgan Stevens, of Jackson, for appellants.
The receiver cannot in a summary way or by virtue of his appointment take possession of property in the hands of strangers to the receivership suit. Also innocent purchasers for value and innocent lienholders will be fully protected.
34 Cyc., pages 90, 191, 193, 226; Kidder v. Beaver, 33 Wn. 635, 74 P. 819; High on Receivers, par. 49; 40 A.L.R. 903; State ex rel. Menzel v. Second Judicial District Court Nevada, 241 P. 317, 43 A.L.R. 1331; Kneeland v. American Loan Trust Company, 34 L.Ed. 379.
D.A. McIntosh, of Collins, and Sennett Conner, of Seminary, for appellees.
A bill is not multifarious when the chief object is a matter in which all the parties are in substantial manner directly interested, and the several matters are related to a common subject and there is a community of interest.
Griffith's Mississippi Chancery Practice, section 206.
There existed a conspiracy on the part of appellant and the other defendants, including his substituted trustee, to cheat and defraud appellee by defeating his lien. Such a conspiracy destroyed any rights of priority that Knight, as mortgagee, might have had at the outset, and renders him personally liable.
The superior mortgagee, in the enforcement of his lien, must have respect for the equities of a junior lienee and may be required to account to him.
Keaton v. Miller, 38 Miss. 630; 11 C.J. 716, 717; Union National Bank v. Moline, 7 N.D. 201, 73 N.W. 527.
C.W. Upton and wife filed a bill in the chancery court against W.T. Adcock, Mrs. Julia Adcock, Moody M. Adcock, substituted trustee, V.O. Knight, W.J. Adcock, and his wife, Mrs. Valley Adcock, alleging that Upton and his wife, the complainants, on the 13th day of February, 1926, filed a bill in the chancery court against W.T. Adcock and his wife praying for the rescission of the sale of certain lands and personal property, and the cancellation of a certain warranty deed executed pursuant thereto, made by the complainants to the said W.T. Adcock and wife; that on May 3, 1926, an amended bill was filed by leave of court, and was answered on the same day by the defendants, and the cause was duly and legally tried on the 4th of May, 1926, on bill, answer, and proof, and a final decree was entered in all respects sustaining the complainant in his contentions, and under which decree there was accrued to complainants a judgment for three thousand four hundred ninety-four dollars, no part of which had been paid; from which decree the defendants W.T. Adcock and wife appealed to the supreme court without supersedeas, and the decree of the court below was affirmed by the supreme court, 110 So. 772. It was further alleged that the defendants W.T. Adcock and Julia Adcock, as was adjudicated in said cause, by fraud and misrepresentations of the defendants W.T. Adcock and his brother, Moody M. Adcock, wrongfully secured from complainants on January 18, 1926, a warranty deed to certain lands described in the bill and to certain personal property therein described; that the defendants W.T. Adcock and Julia Adcock retained possession of said lands, cultivating several hundred acres thereon, and producing thereon a large amount of cotton, corn, hay, and other products, the exact quantities of which complainant is unable to ascertain; and that the defendants in so doing either consumed, used, or sold corn, cotton seed, cane seed, and used all the mules, tools, harness, wagons, and other personal property of the complainants in cultivating and gathering said crops; that thereafter the defendants vacated the said lands, taking with them, or otherwise disposing of, all said personal property of said complainants, and neglected, failed, and refused to return any of the personalty to the complainants, or to pay the rentals adjudged the complainants for the use of said property.
It is further alleged that W.T. Adcock, subsequent to the suit for rescission and cancellation above stated, pretended to execute a deed of trust on the crops to be grown on the said lands and the mules above mentioned in favor of V.O. Knight, who, it is charged, accepted said deed of trust with full knowledge of said pending litigation, and continued to make advances to said defendant W.T. Adcock, and even after the decree of cancellation and rescission entered by the court in favor of the complainants; and that there was a conspiracy between W.T. Adcock, M.M. Adcock, and V.O. Knight, to cheat, wrong, and defraud the complainants.
It appears that, after the suit was instituted, as above stated, in the chancery court, and while the appeal was pending in the supreme court without supersedeas, a receiver was appointed by the chancery court, on the application of Upton, to take charge of the property and crops involved in said litigation for the use and benefit of all parties, but that W.T. Adcock, M.M. Adcock, and V.O. Knight refused to yield possession thereof to the said receiver so appointed, and that V.O. Knight substituted M.M. Adcock as trustee in his deed of trust given by W.T. Adcock, and caused him to take charge of the said property, and continued to furnish M.M. and W.T. Adcock money and supplies, and permitted M.M. Adcock to dispose of the crops and personal property grown upon said premises, V.O. Knight buying some of the property at a private sale between him and the trustee and W.T. Adcock. It was shown in the proof that the crops grown in 1926, and the live stock, were in excess of the deed of trust taken by V.O. Knight; and the chancery court, upon the hearing in the present cause, adjudged V.O. Knight's deed of trust superior, but found that the property converted by Knight and M.M. Adcock and W.T. Adcock, above the amount which V.O. Knight was entitled to in preference to the complainants, amounted to one thousand eight hundred ninety-one dollars and thirty-nine cents, and rendered judgment against said parties for said amount. He also rendered judgment against M.M. Adcock for three hundred dollars, value of tools and property converted by M.M. Adcock; and rendered judgment jointly and severally against V.O. Knight and M.M. Adcock for one thousand eight hundred ninety-one dollars and thirty-nine cents at six per cent interest from January 1, 1927, until paid, and judgment against Adcock severally for the said three hundred dollars and all costs. Costs against Adcock and Knight were joint and several.
It is contended by the appellants that the bill was multifarious, and this constitutes the principal ground relied upon for reversal. We are of the opinion that the bill is not multifarious; that the rights of all the parties to the litigation centered in, or sprang from, the property described in the bill, and the chancery court had jurisdiction to do complete justice between all the parties concerned. Roberts v. Burwell et al., 117 Miss. 451, 78 So. 357; Cumberland, etc., Co. v. Williamson, 101 Miss. 1, 57 So. 559; Tribette v. Railroad Co., 70 Miss. 182, 12 So. 32, 19 L.R.A. 660, 35 Am. St. Rep. 642.
It is next contended that the court erred in rendering the decree against Knight, as Knight was not a party to the original suit referred to above between C.W. Upton and W.T. Adcock for the rescission, and that his deed of trust was made before the said suit was filed, and that he was not responsible for the conversion of the property by M.M. Adcock, trustee. It is clear from the evidence that Knight had knowledge of the pending suit and the appeal before all of the amount furnished by him was furnished, and before the property was sold by Adcock; that a receiver had been appointed; and that it was the duty of Adcock to turn over to the receiver the property in conformity with the decree of the court. On learning of the facts involved in the suit and of the decree of rescission, it was the duty of Knight to then act so as not to prejudice the rights of Upton to the possession of the property and to not obstruct carrying out of said decree. The proof is sufficient for the chancellor to find as a fact that Knight was a participant in the defeating of the handling of the property between the receiver, and in the conversion of the property to the hurt of Upton and his rights, and the decree of the Chancellor is supported by ample testimony, and is affirmed.
Affirmed.