Robinson v. Turfitt

Counsel

Jones Stockett, of Woodville, and Gordon Gordon, of Liberty, for appellant. We rely upon the Supreme Court decision in the case of Rickets v. Rickets, 152 Miss. 792 , 119 So. 194 , Sections 380 and 381 of the Mississippi Code of 1930 and Sections 271 and 272 of Mississippi Chancery Practice by Griffith, and the principle of equity that the defendants having brought about themselves the facts justifying this injunction by claiming in writing some unknown and unstated portion of the $3,000 judgment then pending on appeal and demanding an accounting they will not in equity be now permitted to evade making full answers to the charges of the bill of complaint and the twenty interrogatories duly propounded. Where the complainant in his bill waives an answer under oath, the answer, whether sworn to or not, is not evidence for the defendant. Rickets v. Rickets, supra; Hentz v. Delta Bank, 76 Miss. 429 , 24 So. 902. Section 381 of the Mississippi Code of 1930 is very specific on this point. Section 380 of the Mississippi Code of 1930 requires the defendant to answer fully all the allegations of the bill and all matters of fact therein alleged and not denied by the answer otherwise than by the general traverse may be taken at the hearing as admitted. Neither the defendant bank or the trustee filed any answer. They filed the alleged disclaimer. However this disclaimer could in no wise operate to enlarge either the title or right of the complainant or the co-defendant Turfitt. In section 272, Mississippi Chancery Practice, it is stated, "Nor may the defendant, by a disclaimer, evade a full answer when the bill charges more than a mere claim or interest on the part of the defendant, or where the whole case is such that the complainant is entitled to such an answer, although it may be that the defendant is presently without any claim. For instance, the bill may show that the defendant has been an active participant in a fraud, or that his actions have become interwoven into a tangle or complication which it is the object of the bill to unravel, — in all such cases a full answer is required." In the sworn bill of complaint filed, this appellant makes the following charge with reference to the defendant Federal Land Bank of New Orleans, which stands today admitted and confessed by them in this record, to-wit: "The defendant Federal Land Bank of New Orleans should complainant be forced to pay any judgment that may be rendered against him in said case No. 3100 to Edward Turfitt intends to and threatens to hold complainant liable and subject him to suit and although after serving said written demand copy of which was delivered to said Edward Turfitt and his attorney and of which they had knowledge both the said Edward Turfitt and plaintiff in case 3100 refuses and fails to make said bank a party plaintiff and the said bank by not intervening in said law action attempts in co-operation and conjunction with said Edward Turfitt to place complainant at disadvantage and take advantage of the inadequacy of remedy at law and thus use the said Circuit Court jurisdiction for the purpose of defeating full and complete justice and thereby vex, annoy, and harass complainant with numerous claims, demands and suits; the said pleadings show on their face in said law action when considered with the above facts such to be true." Fraud and bad faith is thus charged against the bank. They should answer. We submit that the learned court below committed error in dissolving the injunction without any evidence and in overruling the motion to strike the disclaimer from the files and refusing to require answer to the bill of complaint. Clay B. Tucker, of Woodville, for appellees. The bill of injunction in this case on its face is an attempt of Emerson B. Robinson, a stranger to a mortgage, to interpose the mortgage or deed of trust as a obstacle against Edward Turfitt, the mortgagor, seeking to recover damages for the destruction of part of the mortgaged property and damage to the other parts. This a stranger to the mortgage cannot do, as Section 2128, Code of 1930, provides: ". . . and, before a sale under a mortgage or deed of trust, the mortgagor or grantor shall be deemed the owner of the legal title of the property conveyed in such mortgage or deed of trust, except as against the mortgagee and his assigns, or the trustee after breach of the condition of such mortgage or deed of trust." Emerson B. Robinson, being neither the mortgagee nor the trustee in the deed of trust granted by Edward Turfitt, the mortgagor, is a stranger, and does not come under the exception laid down by the statute supra, and the legal title insofar as this appellant is concerned is by the statute owned by Edward Turfitt, the appellant here. Illinois Cent. R. Co. v. Hawkins, 65 Miss. 200 , 3 So. 410. In the case of Illinois Central R. Co. v. Hawkins, supra, this court said that in such a situation as set up in appellant's bill for injunction, "It may be that there may be cases in which the tort-feasor would be in danger of a suit by the mortgagor and also of one by the mortgagee, but relief if there be any must be had at the hand of a court of equity by a bill of interpleader." This court does not say that this relief must be by injunction as in this case but by a bill of interpleader, which certainly would lie under the facts set up in appellant's bill. The appellant also had an adequate remedy at law in the circuit court case, if the Federal Land Bank of New Orleans was a necessary party plaintiff to this suit, and there was a nonjoinder on the part of Edward Turfitt, in failing to join said bank as a party plaintiff as alleged in the bill of injunction. A.K. McInnis Lumber Co. v. Rather, 111 Miss. 55 , 71 So. 264. The appellant here knew of this mortgage held by the Federal Land Bank at the time he filed his pleadings in the circuit court. Therefore, Emerson B. Robinson having elected in his pleadings to waive the nonjoinder in the circuit court cannot at this late date elect to enjoin on the nonjoinder of the Federal Land Bank as a necessary party plaintiff, as he cannot waive an adequate remedy at law, and then allege and claim he is without such adequate remedy in law in an injunction proceedings. Under the laws of this state the appellee had the plain right to bring suit for the destruction of the mortgaged property, and he cannot be restrained by injunction from exercising this right. Sturges v. Jackson, 88 Miss. 508 , 40 So. 547. The Federal Land Bank in filing its disclaimer herein has only waived its right to sue for the damages done to its mortgaged property by the alleged fire, as it had a legal right to do. Love v. Miss. Cottonseed Prod. Co., 174 Miss. 697 , 712, 159 So. 96 .