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(100 So.)

general issue and several special pleas. CURRIE-McGRAW CO. v. H. & J. FRIED. These special pleas were demurred to by the MAN. (No. 24080.)

appellant, the demurrers were overruled, the (Supreme Court of Mississippi, Division B. appellant declined to reply thereto, and judg

ment tinal was entered in favor of the apMay 26, 1924. Suggestion of Error Overruled June 9, 1924.)

pellees. From which judgment this appeal

is prosecuted. (Syllabus by the Court.)

It becomes necessary to consider the suff1. Bills and notes aww 365(2)-Maker of note ciency of these pleas. The first special plea bearing date of secular day estopped as demurred to alleges, in substance, that the against innocent holder to show execution on check sued on was executed because of a Sunday.

contract which was made on Sunday between When a party makes and puts in circula- Kramer, the payee in the check, and the detion a negotiable instrument purporting to be fendants; that the check itself was made and made and bearing date of a secular day, he is delivered on Sunday; and for this reason estopped as against an innocent holder from showing that it was actually executed and de- both the contract and check are void. Anlivered on Sunday.

other special plea alleges that the check was

delivered to the payee, Kramer, to be held in 2. Bills and notes 149-Postdated instru.

trust by him until Kramer had complied with ment negotiable.

a certain agreement, and that in disregard of The fact that a negotiable instrument was

this trust Kramer transferred the check to postdated does not destroy its negotiability or permit the making of the defenses existing be- the plaintiff; and nothing was ever paid to tween the original payer and payee.

the defendants by Kramer for the check.

Another special plea in substance alleges the 3. Bills and notes w 149–Failure to place federal revenue stamps on Instrument does

same facts. None of the above pleas deny not affect negotiability.

that the plaintiff (appellant) was a holder in The failure to place the proper revenue

good faith for value. Another special plea stamps on a negotiable instrument in accord alleges that plaintiff was not a holder in du ance with the federal law does not render it course, because the check was postdated by Donnegotiable in this state.

a matter of six days when delivered by de 4. Bills and notes 369–Payee's negotiation fendants to Kramer, and that the plaintifr of instrument in violation of agreement with received the check two days before its matu. . payer no defense as against innocent pur. rity; and that under federal law postdated chaser for value without notice.

checks are required to be stamped and canThe fact that a negotiable instrument was celed; that this check was not stamped and Degotiated by the payee in violation of his | canceled and this failure put the plaintiff on agreement with the payer is no defense to a notice of the defenses of defendant to the suit by an innocent purchaser for value without check which are stated in the above pleas. notice.

Another special plea merely alleges the fact

that the check was postdated, received by Appeal from Circuit Court, Lafayette plaintiff two days before its maturity date, County; Thos. E. Pegram, Judge,

and therefore plaintiff was put on notice of, Suit by the Currie-McGraw Company the defenses of defendant to this check. against H. & J. Friedman.

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Judgment for

From the contents of these pleas, there are defendants, and plaintiff appeals. Judgment two questions presented for decision: reversed, demurrers to pleas sustained, and

(1) Is a check which bears a legal date, is. case remanded.

sued on Sunday, in pursuance of a business

transaction and agreement made on Sunday Montgomery & McClure, of Sardis, for in violation of our Sunday law, void in the appellant.

hands of a holder in due course? L. C. Andrews, of Oxford, for appellees.

(2) Is a postdated check transferred to a

holder before the due date, which does not SYKES, P. J. The appellant, plaintiff in contain proper revenue stamps duly canthe circuit court, brought suit against the de- celed, subject to the defenses existing befendants, a copartnership, for $1,500 with tween the payer and payee? interest, based upon a check executed by Section 1102, Hemingway's Code (section these defendants payable to one P. E. Kra- 1366, Code 1906), makes it a misdemeanor to mer or his order, and by Kramer properly to do certain work on Sunday. Under this made payable to appellant. The appellant law this court has held that notes executed accepted the check in good faith for value

on a secular day in compliance with conreceived. The declaration alleges the pre-tracts made on Sunday are void. Kountz v. sentment of the check in due course for pay- Price, 40 Miss. 341. Likewise it is held that ment and the refusal of the bank to honor a promissory note executed on Sunday to sesame at the instance and request of the de- j cure payment of a balance found due is void. fendants. The check is dated April 1, 1922. Miller v. Lynch, 38 Miss. 344. To this declaration there was a plea of the

We have examined all the decisions of this wow For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 100 SO.-18

19

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court which have been called to our atten-, deny the legality of date in a suit against him tion, and which we have been able to ind, by an innocent holder, who came into possesdealing with this question. These cases are sion as a bona fide purchaser for value, with

out notice. all between the parties who made the con

It would seem that this rule, as tract and who had knowledge that it was just, and based on sound reason."

applicable to commercial paper, is essentially

Moseley v. made on Sunday; in short, they were suits Bank, 3 Ala. App. 614, 57 South. 91; Gordon between parties who were in pari delicto. v. Levine, 197 Mass. 263, 83 N. E. 861, 15 L The rights of innocent holders for value were R. A. (N. S.) 243, 125 Am. St. Rep. 361; not there discussed. The case which is per-Cranson v. Goss, 107 Mass. 439, 9 Am. Rep. 45. haps nearer in point than any of these cases is that of Duggan v. Champlin, 75 Miss. 441,

In the case of Knox v. Clifford, 38 Wis. 23 South, 179. In that case the court used 651, 20 Am. Rep. 28, the rule is thus well this language:

stated: "Her signature on Sunday is a void act

"Where a party makes and puts in circulaagainst one with knowledge of that fact, but tion a negotiable note purporting to be made the delivery of the deed on a secular day to a and bearing date on some secular day, he is grantee not cognizant of the fact that it was estopped, as against an innocent holder, from signed on Sunday, is valid as to the wife and showing that it was actually executed and deall persons claiming under her."

livered on Sunday. We cannot well conceive

of a stronger case for the application of the In the case of Elkin Henson Grain Co. v.

doctrine of estoppel than such a case pre

sents." White, 98 South. 531, this court held a check void in the hands of an innocent purchaser Another case in point is Johns v. Bailey, 45 when given in payment for intoxicating liq-Iowa, 241.

Headnote 3 in that case is as follows: In the case of Love v. Wells, 23 Ind. 503, "The general rule is that illegality of con- | 87 Am. Dec. 375, the court said that, assumsideration is no defense to an instrument in the ing that a deed was delivered on Sunday and hands of a holder in due course, but to this void, the party who executed it and gave it rule there is the well-established exception a secular date could not set up the invalidity that when a statute, expressly or by necessary of the deed against a subsequent vendee who implication, declares the instrument absolutely void, it acquires no validity by its transfer to purchased the land for a valuable considera. an innocent holder for value, and no recovery ing transpired on Sunday. To allow the de

tion without notice of the transaction hav. can be enforced thereon."

fendant such a defense would permit him by Section 1102, Hemingway's Code, makes it his own unlawful act to perpetrate a gross a misdemeanor to do certain kinds of labor fraud upon innocent purchasers, and to such or work on Sunday. It does not expressly an act the law will not lend its aid or give make the giving of any instrument on that its sanction. day void. In the Elkin Case, supra, the stat- [1] We therefore conclude that the defendute expressly made void the check. We are ant is estopped from pleading the Sunday law not called upon in this case to decide wheth- in this case. er this Sunday or Sabbath law by necessary [2] II. The fact that the check was postimplication would make void an instrument dated does not destroy its negotiability or dated that day.

permit the making of the defenses existing In the case at bar the check is given a between the original payer and payee. legal date, namely, April 1st. It is in the Section 12 of the Negotiable Instruments hands of a holder in due course without no- Act, section 2590 of Hemingway's Code, is as tice of the fact that it was issued on Sunday. follows: This holder is an innocent purchaser for val

"The instrument is not invalid for the reason ue without notice. To permit this defense only that it is antedated or postdated, provided would be to allow these defendants to take this is not done for an illegal or fraudulent advantage of their own wrong, to profit by purpose. The person to whom an instrument the fact that they had violated the Sunday so dated is delivered acquires the title thereto law; while, on the other hand the plaintiff as of the date of delivery." has violated no law and had no knowledge of its violation by the defendants. To permit

The pleadings in this case do not allege this defense would be to allow the party who that the check was postdated for an illegal or alone has been guilty of a breach of the law fraudulent purpose. The purpose for which to set up his illegal act as a defense to a

the check was postdated was for the payee, suit by an innocent party. This court will Kramer, to hold until he had complied with not entertain such a defense.

certain agreements, which agreements were The Court of Appeals of Alabama, in pass- not illegal or fraudulent. ing upon a similar question says:

Section 2634, Hemingway's Code, provides

that"The great weight of authorities seem to hold that one who gives to an instrument a "To constitute notice of an infirmity in the legal date, thereby authorizing innocent par- instrument or defect in the title of the person ties to deal with it as such, cannot be heard to negotiating the same, the person to whom it is

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(100 So.) negotiated must have had actual knowledge of , and without notice of the breach of trust may the infirmity or defect or knowledge of such recover upon the instrument. : * * It is no facts that his action in taking the instrument defense against a bona fide purchaser for value amounted to bad faith."

to prove that the person to whom the paper

was intrusted was authorized to use it only for There is no allegation in any of these pleas a particular purpose, and fraudulently convertthat the holder of this check had actual will be liable to a bona fide purchaser for value

ed it to a different purpose.

A person knowledge of any infirmity or defector

on negotiable paper which he intrusts to an knowledge of any facts on which he could be agent for negotiation, and which the agent mischarged with bad faith. While there are appropriates. The theory of these cases is some authorities to the contrary, we think that where a principal clothes his agent with the general rule is that a check which is apparent authority to negotiate negotiable panegotiable in form is not rendered nonnego- per, i. e. by indorsing such a note in blank, betiable because it is postdated, and that the

fore maturity for a valuable consideration, the indorsee of such a check is not put on no- will bind the principal as effectually as if no

act of the agent, though wholly unauthorized, tice of any defects because the check is nego- defect of authority existed. Again, the reason tiated prior to its date. The following au- is given, that where one of two innocent parthorities sustain this decision: Triphonoff v. ties must suffer a loss, the loss must fall upon Sweeney, 65 Or. 299, 130 Pac. 979; Albert the one who, by his trust and confidence has v. Hoffman, 64 Misc. Rep. 87, 117 N. Y. Supp. enabled the perpetrator of the fraud to com1013; American Nat. Bank v. Wheeler, 45 mit it.” Cal. App. 118, 187 Pac. 128; Wilson v. McEachern, 9 Ga. App. 584, 71 S. E. 916; John- 208 et seq. See, also, Despres et al. v. Drug

See, also, same authority, page 298, par. son y, Harrison, 177 Ind. 240, 97 N. E. 930, Co., 123 Miss. 598, 86 South. 359; Huddleston 39 L. R. A. (N. S.) 1207.

V. McMillan, 112 Miss. 168, 72 South. 892. [3] The failure to put the proper revenue

The demurrers interposed to these special stamps on the check, in accordance with the

pleas should have been sustained. federal law, does not render it nonnegotiable

The judgment of the court is reversed, the in this state. In the case of Sowell V. Rankin, 120 Miss. 458, 82 South. 317, this demurrers are sustained, and the case is

remanded. court held that

Judgment reversed, demurrers sustained, "The formalities to be observed in the mak- and the case remanded. ing and recording of a deed to real property is & matter of regulation by the state in which the property is situated, and not by the general government, so that the United States Internal Revenue Law providing that unstamped instruments of writing shall be invalid and not AUSTIN V. SULLIVAN. (No. 24119.) subject to record has no application thereto."

(Supreme Court of Mississippi, Division A.

June 2, 1924.) Hence a deed unstamped is valid, is legally entitled to be recorded, and the fact that

(Syllabus by the Court.) it is regarded as an unstamped deed is constructive notice under the law of Mississippi 1. Taxation Em421(6)—Description of land

on tax assessment roll construed. in the same manner as if it was stamped in accordance with the laws of Congress in roll as W. 12 of N. W. 44 less railroad right

A description of land on a tax assessment this respect. The reasoning applied by the court in that land in the subdivision other than the rail

of way containing 45 acres, includes all of the case applies in this case. Our Negotiable In-road right of way, although containing more struments Act is silent upon the subject of than 45 acres, a part of which is not owned by revenue stamps to be carried on checks or the person to whom the assessment is made, notes, and a failure to comply with the fed- and which is separately assessed to the owner eral law upon this subject does not destroy

thereof. the negotiability of the instrument in this 2. Taxation 623—Where two sufficient asstate.

sessments and taxes paid under either, sale [4] III. It is also perhaps proper to state under other assessment void. that the fact that the check was negotiated If there are two sufficient assessments of by the payee in violation of his agreement land and the taxes due thereon are paid unwith the payer is no defense to a suit by the der either, a sale of the land under the other innocent purchaser for value without notice. assessment is void. This rule is thus stated in R. C. L. vol. 3,

Appeal from Chancery Court, Forrest p. 1013, par. 221 :

County; T. P. Dale, Chancellor. "Where a negotiable instrument is put in circulation fraudulently and in violation of au

Suit by C. W. Sullivan against I. V. Austin, thority by one to whom the owner has intrust- From a decree for plaintiff, defendant aped the instrument, a bona fide holder for value peals. Reversed, and bill dismissed.

For other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes

Davis & Hill, of Hattiesburg, for appel- ( pellee being that under which he claims and lant.

here seeks to have confirmed. D. E. & C. W. Sullivan, of Hattiesburg, for One of the appellant's contentions is that appellee.

the sale to the state for taxes is void for the

reason that all the taxes due on the land for SMITH, C. J. This is a suit by the ap- 1914 were paid under the assessment thereof pellee to confirm the tax title held by him to to Robert E. Burkett. certain land, which, unless the tax title is

One of the appellee's contentions is that, good, is owned by the appellee.

when the several assessments of the land emIn 1909 Robert E. Burkett owned the W. braced in the W. 12 of the N. W. 44 of the 42 of the N. W. 44 of Sec. 23, Tp. 4, R. 13 W., section here in question are taken into conless that part thereof included in the rights sideration, it is manifest therefrom that the of way of several railroads which cross the first assessment thereof to Robert E. Burkett land. Burkett executed a deed of trust was not intended to include all of the W. 19 thereon to Griffin to secure an indebtedness of the N. W. 14 less the railroad rights of to him.

Afterwards and prior to 1913, he way, but only 45 acres in the W. 12 of the N. sold a portion of the land to other parties, w. 14, which assessment would be valid unamong them being his brother John B. Burk- 1 der sections 4283 and 4285, Code of 1906 (secett, to whom he sold the land here in contro- tions 6917 and 6919, Hemingway's Code). versy. In 1913 the W. 12 of the N. W. 14 of

[1,2] The description of the land assessed Sec. 23, Tp. 4, R. 13 W., was assessed on the to Robert E. Burkett is plain and unambigucounty assessment roll as follows:

ous, and covers the whole of the W. 12 of the Robert E. Burkett, W.12 of the NW 44, less

N. W. 14, less the railroad right of way. It railroad right of way, containing 45 acres

is true that the land included in this descripvalued

$ 450 00 Robert E. Burkett, part of the S.W.44 of

tion is more than 45 acres, but the error in the N.W 44, lying between G. & S. I. R. R.

the statement of the number of acres there. and N. O., M & C. R. R., less part sold

in included is not material and can have no T. S. Jackson, 4 acres, valued..

50 00 Hattiesburg Wood Reduction Company part

effect on the description thereof. This being of the W.1 of the N.W.44, part of the

true, what here occurred was simply that N.W.44 of the N.W.44, containing 12 acres,

that part of the N. W. 14 of the N. W. 14 of valued

600 00 Sec. 4, between the M. C. and N. O., M. & C. John B. Burkett, part of the N.W.44 of the

R. R. here in controversy was assessed twice, N.W.14, lying between M. C. and N. O., M. & C. R. R, 6 acres, valued..

50 00 but, having been paid on under one of the asTatum Lumber Company, 50 feet across W.4

sessments thereof, could not be sold for taxes of N.W.14, 2 acres, valued..

10 00 under the other. Dodds v. Marx, 63 Miss. Tatum Lumber Company, 50 feet across S.W.44 of the N.W.44, 1 acre valued....

10 00

443. Total acres assessed in the W.42 of the

The decree of the court will be reversed, N.W.44, Sec. 23, 70 acres

and the bill dismissed.

Reversed, and bill dismissed. Total value assessed..

$1,170 00 Total acreage in railroad rights of way, 10.

The deed of trust executed by Robert E. Burkett to Griffin was foreclosed, and the land was purchased at the sale by Griffin, CENTRAL NAT. BANK v. PERRY. who in December, 1914, conveyed it to the

(No. 24104.) appellant; the two Burketts joining with hiin

(Supreme Court of Mississippi, Division B. in the deed.

May 26, 1924.) Before purchasing the land the appellant was advised by Stokes V, Robertson, the at

(Syllabus by the Court.) torney and agent for Griffin and Robert E. Abatement and revival 37-Bank entitled Burkett, that the land was free of all incum

to prosecute action to judgment on merger brances, and that the taxes for 1914 had been with other bank pending suit. paid. Robertson, himself, as Griffin's agent, Where a suit is filed by a bank which at paid the taxes due on the two assessments of the time of the suit owned the cause of action, the iand to Robert E. Burkett hereinbefore but pending the suit it merged with another referred to. He was not aware of the as- corporation and thereby lost its corporate sessment of the 6 acres here in question to identity, and the cause of action became by John B. Burkett, and supposed that the as the merger vested in the new corporation, it sessment to Robert E. Burkett covered all was error to direct a verdict for the defendant the land. The taxes based on the assessment of action because section 497, Hemingway's

on the theory that the plaintiff had no cause of the 6 acres here in question to John B. Code (section 717, Code of 1906). provides Burkett not having been paid, the land was the cause in such case may be prosecuted to sold thereunder by the tax collector, struck judgment in the name of the original plaintiff. off to the state, and afterwards sold by the state land commissioner to the appellee; the Appeal from Circuit Court, Neshoba Coundeed from the land commissioner to the ap- i ty; J. T. Brown, Special Judge.

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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(100 SO.) Suit by the Central National Bank against , original party, or the court may allow the perC. L. Perry. From judgment denying plain- son to whom the transfer or assignment of tiff's motion to substitute other bank with such interest has been made, upon his applicawhich it had become merged as plaintiff, tion therefor, to be substituted as a party plaintiff appeals. Reversed and remanded. plaintiff in said action."

Under this section it was not necessary Jones & Boydstun, of Louisville, for ap for the new corporation to be substituted as pellant.

a plaintiff, but the action would proceed to Wilson & Dees, of Philadelphia, for appel- judgment in the name of the original plainlee.

tiff, and judgment be entered thereon for the
ETHRIDGE, J. The Central National use of the real owner. It was therefore er-
Bank of St. Louis, Mo., brought suit against ror, for the court below to sustain the mo-
Dr. C. L. Perry upon three acceptances dat- tion and to strike out the evidence on the
ed April 1, 1919, due 4 months, 6 months, motion of the defendant, and it should have
and 8 months after date, respectively, drawn permitted an amendment by the plaintiff aft-
by the National Novelty Import Company on er this question was raised and passed upon.
Dr. C. L. Perry, and accepted by him and The judgment will therefore be reversed,
assigned to the Central National Bank. The and the cause remanded.
defendant pleaded the general issue and cer-

Reversed and remanded.
tain special pleas, alleging in the special
pleas that the Central National Bank was
not the bona fide holder, in due course, be-
fore maturity, and without notice, and that
both the Central National Bank and the Na-

LOVE, Superintendent of Banks, V. MURtional Novelty Import Company were guilty

RY, State Treasurer. . (No. 24071.) of fraud with reference to the acceptance, and that the bank well knew that said ac- (Supreme Court of Mississippi. June 2, 1924.) ceptances were secured by fraud, and also

(Syllabus by the Court.) that there had been a complete failure of the consideration. To which special pleas Banks and banking Om 15–State funds deposit.

ed in bank which has not qualified as dereplications were filed.

pository protected by guaranty fund. This suit was filed on the 23d day of De

Money belonging to the state, deposited in cember, 1919, and was returnable to the Feb

a bank which has not qualified as a state deruary term, 1920, of the circuit court. For pository, is protected by the state bank guarsome reason the cause was not tried until

anty fund.
the February term, 1923. In the time be-
tween the filing of the suit and the trial the

En Banc.
Central National Bank and another bank of

Appeal from Chancery Court, Coahoma
St. Louis merged; the constituent corpora County; C. L. Lomas, Chancellor.
tion taking over the assets of each bank,
and this appeared in the plaintiff's deposi-

Action between J. S. Love, Superintendent tions. At the conclusion of the plaintiff's of Banks, and W. M. Murry, State Treasurer. evidence the defendant moved the court to From judgment rendered, the former appeals. exclude the testimony on the part of the

Affirmed. plaintiff and direct. a verdict for the defend Flowers & Brown and C. L. Hester, all of ant, because the testimony offered on behalf Jackson, for appellant. of the plaintiff shows that this suit was in Green, Green & Potter and Cassedy & Potstituted in 1919 in the name of the Central ter, all of Jackson, for appellee. National Bank, and the testimony shows that in 1920 the plaintiff, the Central National Bank, and the Liberty Bank merged,

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HOLDEN, J. The only question involved and that from said date there was no such in this case is whether or not money belongidentity as the Central National Bank. This ing to the state of Mississippi, deposited in a motion was sustained by the court below, bank which has not qualified as a state deand the plaintiff excepted. Thereupon the pository, is protected by the state bank guarplaintiff moved the court to permit him to anty fund. amend so as to insert the new corporation

The identical question was decided by this instead of the Central National Bank, which court recently in Wardlaw v. Planters' Bank motion the court denied. From this judg- of Clarksdale, 131 Miss. 93, 95 South. 135, ment the plaintiff prosecuted this appeal.

in wbich it is held that the funds of a muUnder section 497, Hemingway's Code (sec-nicipality in such a case are protected by tíon 717, Code of 1906), it is provided:

the state bank guaranty fund. "In case of a transfer or an assigpment of rule applies here, and we decline to overany interest in such chose in action before or

rule the Wardlaw Case; therefore the judgafter suit brought, the action may be begun, ment of the lower court is affirmed. prosecuted and continued in the name of the

Aflirmed.
For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

title

The same

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