Carney v. Sharp

78 So. 775, 117 Miss. 809

Opinion

HoldeN, J.,

delivered the opinion of the court.

Gr. H. Carney appeals from a decree against him for four hundred, fifty dollars, based upon the following facts presented in the chancery court:

E. C. Breaux, in consideration of one hundred, fifty dollars, executed a deed of trust to W. F. Collins, trustee, upon certain real estate to secure the payment of the one hundred, fifty dollars to the appellant, G-. H. Carney. The deed of trust was in the regular form, and provided that in event of sale the trustee would convey such title only as was vested in him by virtue of said deed of trust.0 Breaux having failed to pay the one hundred, fifty dollars tq appellant, Carney, when due, the trustee, Collins, proceeded under said deed of trust to sell the property, and A. IT. Flannigan purchased it at the trustee’s sale, and the trustee, Collins, conveyed the property to Flannigan by trustee’s deed. About two months after Flannigan purchased the property at the trustee’s sale he conveyed it by warranty deed to the appellee,’ W. J. Sharp, in consideration of four hundred, fifty dollars. A few weeks afterwards it was discovered that the title to the property was not good in Sharp because of an erroneous description in the, deed of trust from Breaux to Collins, trustee. It also appears that the sale by Collins, trustee, to Flannigan was held to be void by the chancellor on account of failure to advertise the property as provided by the terms of the deed of trust. The appellee, Sharp, then filed this suit in the chancery court against appellant, Carney, and others to recover the four hundred, fifty dollars paid by him to Flannigan for the property, and for which Flannigan had executed to appellee, Sharp, a warranty deed; Flannigan, as we have already said, having purchased the property at the trustee’s sale from Collins, trustee.

The lower court granted a decree against the appellant, Carney, on the ground, it seems, that Sharp, ap-pellee, should recover his money paid out to Flannigan, and that as Carney was the original beneficiary in the deed of trust, that he, too, should be held liable for the four hundred and fifty dollars paid by appellee, Sharp, to Flannigan, the subsequent purchaser at the trustee’s sale. It does not appear, however, that appellant, Carney, received any part of the four hundred and fifty dollars paid by appellee, Sharp, nor does this record disclose that Carney had any connection whatever with the transaction between Flannigan and Sharp; in fact, it does not appear anywhere that Carney had any connection with appellee, Sharp, at any time with reference to the sale of the property. The record shows that appellant, Carney,-was appealed to, after, it was discovered ‘ that the deed of trust contained a void description, and he refused to have anything to do with the subsequent transactions between any of the parties.

It appears simply and clear to ns that no obligatory or contractual relations ever existed between appellant, Carney, and appellee, , Sharp, either express or implied. Appellant, Carney, was merely the cestui que trust in the deed of trust given to secure the payment of the one hundred and fifty dollars advanced by him to Breaux, and after the deed of trust was foreclosed by the trustee, Collins, and the beneficiary, Carney, was repaid the money due him, the' whole matter was closed and terminated so far as the beneficiary, Carney, was concerned; therefore there can be no rule or reason for holding appellant, Carney, in the sum of four hundred and fifty dollars, the amount paid by appellee, Sharp, to Flannigan, who was a subsequent purchaser at the trustee’s sale made by Collins, trustee, in foreclosing the deed of trust executed in the first instance for the benefit of the appellant Carney.

There was no express or implied obligation on the part of. the appellant, Carney, to refund or make good to appellee, Sharp, the amount paid by Sharp to Flanni-gan for the warranty deed to the property. Carney is not shown by this record to have had any connection with, nor benefit 'from, this subsequent sale, by agency, or otherwise; and no fraud whatever appears, in fact or in law, so far as appellant, Carney, is concerned.

The chancellor seems to have held in his decree that a fraud was practiced upon Sharp by Flannigan and Collins, and that since Carney happened to he the beneficiary in the original deed of trust, that this fact “made possible the fraud on Sharp, whether intentional or not,” and that Collins was acting as the agent of Carney. However, the record shows conclusively that Collins was not the agent of Carney in the sale by Flannigan to Sharp, nor was Collins connected with appellant, Carney, in any manner, except as trustee in the original deed of trust; in other words, appellant, Carney, was not concerned or in any manner connected with the subsequent' transactions between Collins, Flannigan, and Sharp, and is not, therefore, liable to the appellee, Sharp, in any; amount. Of course, appellee, Sharp, has his remedy, and it appears, in fact, that he has a decree against Flannigan and Collins for the amount paid out by him in consideration of the execution of the warranty deed to him by Flannigan.

The decree of the court below is reversed, and decree entered here for the appellant Carney.

Reversed.