Clark v. French

74 So. 824, 114 Miss. 185

• Court: Mississippi Supreme Court
• Decided: March 15, 1917
• Status: Published

Opinion

Ethridge, J.,

delivered the opinion of the court.

J. "W. Clark, as agent for Charles B. Clark, trustee, sued out a writ of replevin for certain property named in. the affidavit alleged to be wrongfully detained by C. A. French, trustee, district 1 of Claiborne county, Miss. The. suit originated in a justice of the peace court , and was appealed to the circuit court where the judgment was rendered in favor of the appellee French, trustee. The cause of action grows out of a transaction between J. W. Clark and one Parsons. Clark had been connected with a bank, and the bank was in a condition bordering on insolvency and bankruptcy, and Clark was’ desirous of making arrangements by which the business of the bank could be taken care of¿ and Parsons and Clark and others were to organize a new bank and take over the assets of the old bank, and Clark conveyed or assigned to Parsons certain securities held by J. D. Millsaps & Co., a merchandising firm composed of Clark and Clark’s wife. At the time of the transaction, the wife had died and her estate was being administered by C. B. Clark, the appellant in this cause. It was agreed in the article of agreement that, if Parsons and his associates failed to carry out the agreement, all the securities and property transferred to Parsons would be returned to Clark. The agreement provided in its concluding clause that, in the event that no new bank is organized, then this agreement to be null and void and the said described collateral is to be turned back to said Clark. Receipts and papers were given listing the securities and mortgages and things turned over to Parsons. After making this contract, Parsons got into trouble in New Orleans, and McCabe, of Vicksburg, Miss., an attorney, procured the discharge of Parsons from jail at New Orleans, and later Parsons got in jail again at Vicksburg, and McCabe secured his release from the prison there and, let him have some money in small amounts and rendered professional services in defending Parsons, and Parsons to secure McCabe transferred to McCabe certain of the deeds of trust turned over to him by Clark. It seems that Mc-Cabe knew of the contract between Clark and Parsons .and requested information of Parsons'with reference to the matter, whereupon Parsons exhibited an instrument on which he had written certain lists of the papers .and deeds of trust that Parsons was to have for his own use and benefit to do with as he pleased, and McCabe thereupon accepted said papers in satisfaction of his claim against Parsons. Among the paper's embraced in this writing were the papers and deeds of trust on the property involved in this replevin suit, and the transfer to McCabe was made after the maturity of the note and deed of trust so assigned. Clark claimed that Parsons had forged this writing on the original paper and that it was not authorized and was not written on there at the time the paper was delivered by him to Parsons. French as trustee for McCabe had secured possession of the property under this deed of trust, and Clark, trustee, replevied the property. On these facts the court granted a peremptory instruction in favor of French, trustee, and from this judgment entered on such peremptory instruction this case is appealed here.

We are unable to perceive upon what theory the learned trial judge granted a peremptory instruction. The plaintiffs have shown, if it was accepted as true, that Parsons had forged this clause upon this contract, and it is clear that no person couíd secure a title under a forged instrument. In the second place, McCabe took this assignment of deed of trust after the maturity thereof and was charged with notice of all infirmities and defects in Parson’s title.

The judgment is therefore reversed, and the cause remanded.

Reversed and remanded.