Duggan v. Champlin

Terral, J., delivered the opinion of the court. This is a bill by J. W. Champlin,. beneficiary, and D. R. Barnett, trustee in a deed of trust, against the widow and children of John M. Chisolm, deceased, to foreclose a deed of trust executed by John M. Chisolm and his wife, Mary O. Chisolm, on all the lands of said John M. Chisolm, in Yazoo county, State of Mississippi, including his homestead, to secure two [445] notes, one for $882, due February 1, 1893, and the other for $808.50, due February 1, 1894, with ten per cent, interest after maturity, and for an attorney’s fee of ten per centum thereon provided for by said notes, if placed in the hands of an attorney for collection. As a defense to the bill, the answers of the defendants set up usury, and against the subjection of the homestead to the trust deed, the fact also that Mary O. Chisolm, the wife of John M. Chisolm, signed the notes and trust deed on the Sabbath day. There was no evidence taken as to the defense of usury, and, on the hearing of the case, and during the argument, the defendants’ counsel, seeing the omission, requested the court to remand the case to the rules with leave to amend the answer and make it a cross bill asking for a discovery, etc., which the court declined to do, and the ruling of the court in that matter is made a ground of exception. , The chancellor found, as facts, that the notes and trust deed were signed by Mrs. Chisolm and her husband on a Sunday, but that they were drawn up by Mr. Champlin, and delivered to Chisolm for signature, on a week day, and were, on a week day, delivered by Chisolm to Champlin, with the signatures of Chisolm and wife thereto, and without any notice of their having been signed on Sunday. A decree was made allowing an attorney’s fee, and ordering the homestead and other lands to be sold for the payment of the amount found due. The appellants assign these several rulings for error: 1. A deed takes effect from its delivery, and if delivered on a secular day, it has been held good. 2 Pars. on Cont., 762; Love v. Wells (25 Ind., 503), 87 Am. Dec., 375. Our statute, § 1983, code 1892, requires a deed of trust, to be valid upon the homestead exempted from execution, to be signed by the wife, but the signing becomes operative only by the delivery of the deed. It is inchoate and imperfect until the deed upon which it is made is delivered to and accepted by the grantee. Her signature on Sunday is a void act against one with knowl [446] edge of that fact, but the delivery of the deed on a secular day to a grantee not cognizant of, the fact that it was signed on Sunday, is valid as to the wife and all persons claiming under her. The deed of trust having been delivered on a secular day, Champlin had a right to presume that it was signed on a secular day also, for the maxim, omnia prwsumuntur rite acta esse, applied to the transaction. The presumption is always against fraud or wrong. Lord Campbell, in Tatum v. Catamore, 71 E. C. L. R., 755. In Avery v. Burden, 88 E. C. L. R., 972, Pollock, C. B., said: “Where the maxim, omnia rite acta prmumuntur, applies, there, indeed, if the event ought properly to have taken place on Tuesday, evidence that it did take place on Tuesday or Wednesday is strong evidence that it took place on Tuesday.” It is also a rule of law that no one can take advantage of his own wrong. We think that Mrs. Chisolm was bound by her signature to the deed of trust in this case. 2. The proposed amendment came too late. Our statute provides that amendments shall be allowed in the pleadings and proceedings, on liberal terms, to prevent delay and injustice. Code 1892, § 542 (art. 49, p. 547, code 1857). And in Walker v. Brown, 45 Miss., 618, an amendment not proposed to be filed until the cause had been prepared and set down for hearing was said to come too late. 3. A stipulation for an attorney’s fee is valid. Brahan v. Bank, 72 Miss., 266. We are of the opinion that the decree of the chancery court is correct, and it is Affirmed.