Bank of Philadelphia v. Posey

Smith, C. J.,

delivered the opinion of the court.

In 1907 a judgment was rendered by the circuit court of Neshoba county that the Milburn Wagon Company, a corporation, “do have of and recover from the defendants, the Brantley Bros., a firm composed of Z. A. Brantley, J. B. Brantley, and Jones Brantley,” etc., and before it became barred by limitation an action at law was begun thereon against Z. A. Brantley and Jones Brantley, in which a. judgment by default was rendered in February, 1915, that the Milburn Wagon Company, a corporation, “recover from the defendants, Brantley Bros., a late firm composed of Z. A. Brantley and Jones Brantley,” etc. On May 17, 1920, an execution was issued on the second judgment and levied on certain land owned by J. R. Brantley, and on which the Bank of Philadelphia holds a deed of trust executed to it by J. R. Brantley to secure a debt due it by him. After the levy of the .execution the Bank of Philadelphia and J. R. Brantley exhibited an original bill in the court below against the sheriff, Posey, and the Mil-burn Wagon Company, alleging, in substance:

That Z. A. Brantley was not served with process to appear and defend either .of the actions in which the judgments were rendered; that the land was purchased by Jones Brantley from J. J. Hardage in February, 1918, who “after the conveyance of” the land to him, but on the same day that he purchased it, executed a deed of trust thereon to the Citizens’ Bank of Philadelphia to secure an indebtedness to it; that on the 8th day of January, 1920, Jones Brantley conveyed the land to J. R. Brantley, who on the 20th day of December, 1920, executed a deed of trust thereon to the Bank of Philadelphia to secure an indebtedness due it by him; that both of these deeds of trust were given “to secure the payment of the purchase money on said lands purchased as aforesaid from J. J. Hardage and wife *533 by the said Jones Brantley, and each and every renewal of the original trust deed at the time of the purchase of said land were renewals of the said trust deed given on the date of the purchase of said property, and that each and every one of the foregoing trust deeds or mortgages are duly recorded, as is shown by exhibits hereto attached, and the defendant the Milburn Wagon Company is now estopped from setting up any claim to said lands, and the complainants now and here plead the doctrine of estoppel as a bar to any claim against said lands in addition to any and all claim against said lands in addition to any and all other defense they have against the defendant in said suit; . . . that the said Jones Brantley did not put one cent of money in the lands involved in the litigation at the time of the execution of the said deed on the 15th day of February, 1918, by J. J. Hardage and wife to the said Jones Brantley on the 8th day of January, 1920, but charge the truth to be that the purchase money for said lands was advanced by the complainants, the Bank of Philadelphia and J. R. Brantley, as aforesaid.”

How the deed of trust executed to the Bank of Philadelphia can be a renewal of the one executed to the Citizens’ Bank of Philadelphia, a separate and distinct bank, is not set forth, nor does it appear from any allegation of the bill how, when, to whom, or under what circumstances the Bank of Philadelphia and J. R. Brantley paid the purchase money of the land. The bill prays for a temporary injunction, which was granted, restraining the defendants thereto from selling the land under the execution; that on final hearing the injunction be made perpetual, and “for such other, further, and general relief as they may be entitled to under the law and the facts.” By amendment thereto the bill was made to charge that the land was purchased by Jones Brantley for a homestead, and was being used as such by him at the time he sold it to J. R. Brantley.

It does not appear either from the bill, answer, or the evidence whether J. R. Brantley joined in the plea to the declaration on which the first judgment hereinbefore referred to was rendered.

*534 It appears from the evidence that Z. A. Brantley was not served with process in either of the actions in which the judgments hereinbefore were rendered; that the deed from Hardage to the land was delivered to Jones Brantley in the office of the Citizens’ Bank of Philadelphia, and that at the same time and as a part of the same transaction he delivered to the bank the deed of trust executed by him to the bank to secure the money borrowed from it with which to pay for the land; that Jones Brantley has never lived on the land, but lived in the town of Philadelphia, several miles therefrom; that the deed of trust, given to the Citizens’ Bank of Philadelphia by Jones Brantley was paid off by J. R. Brantley and canceled of record, but when and under what circumstances it was paid off by him does not appear. It does not appear from the evidence what connection, if any, exists between the deed of trust executed by J. R. Brantley to the Bank of Philadelphia and the payment by him of the deed of trust executed by Jones Brantley to the Citizens’ Bank of Philadelphia.

The cause was submitted on bill, answer, and proof, was taken under advisement by the chancellor, and a decree was rendered by him at the next term of the court, dissolving the temporary injunction, dismissing the bill of complaint, and allowing the defendants an attorney’s fee of four hundred dollars, from which the complainants have appealed to this court.

At the term of the court succeeding the term at which the cause was submitted and before the decree was rendered the court overruled a motion made by the complainants that the case be remanded to rules and they be permitted to amend their bill of complaint as follows:

“The complainants pray that the Citizens’ Bank of Philadelphia, Miss., be made a party defendant in this case, and they charge that the complainant Bank of Philadelphia took up and paid off the trust deed held by the said Citizens’ Bank against Jones Brantley covering the lands involved in this suit, and that the trust deed held by the Citizens’ Bank was for purchase money advanced by the *535 said bank in the payment of the land here involved, and that the Citizens’ Bank therefore held a prior lien on said land, and that when the Bank of Philadelphia took up said trust deed held by the Citizens’ Bank, at the request of Jones Brantley and J. B. Brantley, and by and with the consent of the said Citizens’ Bank the complainant Bank of Philadelphia was subrogated to all rights or interest in said land that were held by the said Citizens’ Bank.

“They would show to the court that the copy of the trust deed given by Jones Brantley to the Citizens’ Bank to secure the purchase money of the lands here involved is made an exhibit to the original bill filed herein, as is also the trust deed given by J. B. Brantley to the Bank of Philadelphia, and the said trust deeds show that on the same day and date that the trust deed held by the Citizens’ Bank was. paid the trust deed from J. B. Brantley to the Bank of Philadelphia was given, and they charge the truth to be that the money for which the trust deed was given by J. B. Brantley to the Bank of Philadelphia was paid over to the Citizens’ Bank for the trust deed held by them for the purchase money of said land. They therefore pray that the Bank of Philadelphia be subrogated to all rights or interest that the Citizens’ Bank held by virtue of their trust deed for the purchase money of the lands here involved, and that in the event the court should hold that the judgment upon the execution in this case was- issued is not void, then the complainant Bank of Philadelphia prays that they be decreed a prior lien on the lands involved in this suit, and that if a sale of same be had, said land sell first to pay the said Bank of Philadelphia the amount of the note held by them, including their lawful interest.”

The appellants’ contentions are: First, that the judgments hereinbefore referred to are void; second, that the lien of the deed of trust executed by Jones Brantley to the Citizens’ Bank of Philadelphia was superior to that of the appellants’ judgment, and that the Bank of Philadelphia is entitled to be subrogated thereto for the reason that it *536 was paid off and discharged by J. B. Brantley with money borrowed by him from the Bank of Philadelphia for that purpose, to secure which he executed and delivered to it a deed of'trust; third, that although the land was not occupied by Jones Brantley as a homestead, he had the right so to do, and consequently his deed to J. R. Brantley conveyed the land free from the judgment; and, fourth, no attorney’s fee should have been allowed the appellees. ■

1. The grounds upon which it is claimed by the appellants that the judgments are void are: First, that they are against the partnership and not the individual partners; and, second, that process was not served on Z. A. Brantley. The first of these objections is without merit, the language in which the judgments are couched being in effect the same as if it were “do have and recover of and from the defendants Z. A. Brantley and Jones Brantley, composing the late firm of Brantley Bros.,” etc.

A valid judgment cannot be rendered against a defendant not served with process, and who has not appeared and submitted himself to the jurisdiction of the court, and there are decisions to the effect that a judgment by default rendered against several defendants, some of whom were not served with process, is not only invalid as to the defendants who were not served with process, but the entire judgment is void, among which are several decisions of this court.

The-ground upon which these decisions proceed is that a judgment at law is an entirety, and is valid or invalid as a whole. Weis v. Aaron, 75 Miss. 138, 21 So. 763, 65 Am. St. Rep. 594. The contrary is held by many courts, and the fallacy therein was pointed out in 1 Freeman on Judgments, section 136, and 1 Black on Judgments (2 Ed.), section 211. Section 4944, Code of 1906 (Hemingway’s Code, section 3220), provides that:

“A judgment or decree appealed from may be affirmed as to some of the appellants and be reversed as to others; and one of several appellants shall not be entitled to a judgment of reversal because of an error in the judgment *537 or decree against another, not affecting his rights in the case.”

This statute clearly changed the rule in force at the time of its enactment that a judgment void as to one of several defendants is void, as to all of them in cases where the error which invalidates the judgment as to the one does not affect the rights of the other defendants. The liability of the Brantleys on the cause of action on which the judgment here in question was rendered was joint and several, and the actions could have been dismissed as to Z. A. Brantley, and the causes could have then proceeded to judgment against Jones and J. B. Brantley in the first, and against Jones Brantley in the second. Sections 2682 and 2683, Code of 1906 (Hemingway’s Code, sections 2169 and 2170). Consequently their rights cannot be affected by the erroneous inclusion of Z. A. Brantley in the judgments, and this court so held in Hattiesburg Hardware Co. v. Pittsburg Steel Co., 115 Miss. 663, 76 So. 570. It is true that the statute applies in terms to a direct appeal to the supreme court from the judgment complained of, but it will hardly be contended that an error which cannot be availed of in a direct appeal from, can be availed of in a collateral attach on, a judgment.

In Railroad Co. v. Scott, 108 Miss. 871, 67 So. 491, L. R. A. 1915E, 239, Ann. Cas. 1917E, 880, the rule theretofore followed by this court that a judgment at law is an entirety and must be affirmed or reversed as a whole was repudiated, and the power of this court to affirm a judgment in part and reverse it in part was declared and has since been repeatedly exercised, the abandonment of which practice would be necessitated, should we now hold that a judgment must be dealt with as an entirety.

Weis v. Aaron, 75 Miss. 138, 21 So. 763, 65 Am. St. Rep. 594, Comenitz v. Bank, 85 Miss. 662, 38 So. 35, Hardware & Implement Co. v. Marshall, 117 Miss. 224, 78 So. 7, and Boutwell v. Grayson, 118 Miss. 80, 79 So. 61, support the appellants’ contention but the contention of the appellees is supported by Hattiesburg Hardware Co. v. Pittsburg *538 Steel Co., supra, so that we must necessarily overrule either the first four of these decisions or the last one, and since the first four in our judgment are in conflict with, and the last is in accord 'with, the statute hereinbefore set forth, they will be overruled, and the last-named decision will be adhered to, from- which it will follow that the judgments here in question are valid as to the defendants who were served with process; that is, the first is valid as to J. It. and Jones Brantley, and the second is valid as to Jones Brantley.

2. It will not be necessary for us to decide whether the lien of the mortgage from Jones Brantley to the Citizens’ Bank of Philadelphia was superior to that of the judgment against him, for the reason that neither the original bill nor the evidence discloses any right in the Bank of Philadelphia to be subrogated thereto. One among other reasons for so holding being that it does not appear from either the original bill or the evidence that the mortgage given to the Bank of Philadelphia by J. R. Brantley was to secure the payment of money advanced by it to pay off the mortgage of the Citizens’ Bank of Philadelphia. Moreover, had that fact been alleged, as was sought to be by the amendment to the bill which the court below refused to permit, and proven, it alone would not entitle the Bank of Philadelphia to be subrogated to the lien of the Citizens’ Bank mortgage. In order for the Bank of Philadelphia to be subrogated to that lien, it must have discharged it under an- agreement, expressly or reasonably inferable from the circumstances under which it was discharged, that the lien should be kept alive for its benefit. Good v. Golden, 73 Miss. 91, 19 So. 100, 55 Am. St. Rep. 486; Trust Co. v. Peters, 72 Miss. 1058, 18 So. 497.

3. The argument of counsel for the appellant in support of their third contention is that Jones Brantley had the right to select his homestead, and that had this execution been levied on the land while he owned it he could have moved onto the land before, and thereby prevented its sale under the execution. This is true. Nevertheless that *539 right did not confer upon him the further right of conveying it to a third person free from 'the judgment lien.

4. The only relief sought by the original bill was an injunction the dissolution of which necessarily carried with it the dismissal of the bill; consequently the court below committed no error in allowing the attorney’s fee incurred by the appellees in defending the whole case. Jamison v. Dulaney, 74 Miss. 890, 21 So. 972; Curphy v. Terrell, 89 Miss. 624, 42 So. 235; Mims v. Swindle, 124 Miss. 686, 87 So. 151.

Affirmed.