BEFORE PATTERSON, C.J., HAWKINS & PRATHER, JJ.
PATTERSON, CHIEF JUSTICE, FOR THE COURT:
On May 20, 1981, Harvey Gold brought suit against Huette Barber, Oscar LaBarre, Johnny Jabour, The American Bank of Vicksburg and its Trustee, Landman Teller, Jr., in the Chancery Court of Warren County. Complainant sought cancellation of a warranty deed from himself to Johnny Jabour, cancellation of a deed of trust from Jabour to Landman Teller, Jr., Trustee for the American Bank; or in the alternative, that the deed from Gold to Jabour be cancelled and that complainant be awarded a joint and several judgment of $80,000 against Barber, LaBarre and Jabour; or in the next alternative, that Gold be granted a joint and several judgment of $54,313.60 against Barber, LaBarre and Jabour plus costs.
Each of the defendants answered, and issue being joined, the cause was heard on its merits. At the conclusion of complainant's case in chief, the American Bank and its Trustee, Landman Teller, Jr., and Johnny Jabour were dismissed on their respective motions that the complainant had failed by his evidence to establish a case against them. The trial continued against Barber and LaBarre and at its conclusion the bill of complaint was dismissed as to these defendants.
Aggrieved, Gold appeals to this Court assigning as error:
1. That the learned chancellor below erred in dismissing Jabour and the American Bank upon the close of appellant's case in chief;
2. That in the event the conveyance to Jabour and deed of trust to the American Bank are valid, appellant is the holder of a first lien against the subject property;
3. That the court below erred in dismissing Jabour at the close of appellant's case in chief;
4. That the chancellor below erred in not returning a judgment against LaBarre, Barber and Jabour; and
5. That the finding of facts and conclusions of law by the chancellor below were against the overwhelming weight of the evidence.
The appellant did not pursue his appeal against Jabour
and the American Bank of Vicksburg, or its trustee, and these appeals were dismissed by this Court on January 5, 1983. The remaining appellees are Oscar LaBarre and Huette Barber from whom the appellant seeks a money judgment for the conversion of his property, thereby abandoning his other assignments of error.
Although this appeal is now limited to damages against Barber and LaBarre for conversion, it also necessarily relates in some degree to the record title to a parcel of real estate in Warren County because the record title, not real ownership, was the security basis for the loan or loans placed in issue. The factual circumstances are singular; all appear to be sub-rosa, and the posture of the case before us is unusual. For these reasons we set forth the circumstances in some detail.
At some point in time prior to February 14, 1980, Huette Barber became the alleged" real "owner of a tract of land on Tiffintown Road in Bovina in Warren County. Although there is no disagreement between the parties or their attorneys that the land" somehow "belonged to Barber, his name appears nowhere in the deraignment of title either as a grantee, devisee, donee, by inheritance or otherwise. Notwithstanding this absence of record title in Barber it does emerge from the record that Barber manipulated the record title through others to raise money for his used car business without incurring the suspicion of the lending institutions or the ire of judgment creditors.
The first transfer of the land concerning the present issues was from Norman and Joyce Fields to Henry Harrel on February 7, 1979. The record title was placed in Harrel's name so that he could obtain money from the First National Bank of Vicksburg for Barber by pledging the record title as security for the loan, Barber remaining the undisclosed real owner. Thereafter Barber arranged a meeting in Attorney LaBarre's office for February 15, 1980. Those attending were Oscar LaBarre, an attorney; Henry Harrel, the holder of the record title to the property; Barber, a used car dealer (the alleged" real "owner of the property but with several outstanding judgments against him); Alex Gold, now deceased, a certified public accountant (Barber was one of his clients); and Harvey Gold, the son of Alex Gold, an accountant who worked in the office with his father. We note that Harvey Gold testified several times he was not present at the meeting but ultimately stated that he might have been present but did not participate in the discussions. The other attendees testified that he was present.
According to LaBarre the meeting was called to accommodate Barber in his desire to pay the loan that Harrel had obtained for him from the First National Bank of Vicksburg and for which purpose Harrel held the record title. LaBarre was also requested by Barber to ascertain the exact amount of money he needed to retire the mortgage as well as additional loans from Harrel. In connection with these requests LaBarre was asked to prepare a warranty deed from Harrel to Harvey Gold.
On February 15, 1980, those mentioned met in LaBarre's office, where Harrel conveyed the record title to Harvey Gold. The ostensible consideration for the conveyance was paid from $46,000.00 in cash which either Barber or Alex Gold brought to the meeting but which was disbursed by LaBarre and Barber. The source of the money is critical to the issues involved and is in sharp dispute since Harvey Gold contends it came from a loan he had negotiated with John Bell at his father's request. He testified that Bell did not want to loan the money to his father because the elder Gold was in ill health and for this reason the loan was made to him and that he signed the note to Bell on February 14, 1980. (Appendix 1.) Barber testified the money came to him directly from Bell. His testimony follows:
Q. From whom did you get the money?
Q. How much money did you get?
Q. Did you borrow it from him?
Q. Why did he give it to you?
A. Because he had paid some people to burn my house.
I am going to object to that, your Honor.
Q. I don't want you to talk about any investigation, I mean I am talking about, did you borrow the money from him?
Q. He paid you the money?
A. He paid me to fix my house
Q. They have objected to your telling why, so just leave it right there, O.K.? Don't say anything else about it. O.K. $46,000 he paid you and do you want to tell the Court why he paid it to you?
A. Yeah, he paid it to me
Q. I just want to know if you want to tell the Court why he paid it? Not why he did; do you want to tell the Court?
A. It don't make me no difference.
Q. O.K. then. So you got $46,000?
In either event LaBarre prepared a receipt which was given to Harvey Gold at the time of the conveyance. It follows:
Received from Harvey A. Gold the sum of $37,966.53 for Henry W. Harrel which pays off a bank loan due 1st National Bank on property transferred this date, plus money owed Harrel. Payment is acknowledged in full.
The receipt corroborates the testimony of Gold if it is not a sham to deceive prospective lendors of future loans. It portrays the quality of the testimony with which we are presently concerned. LaBarre explained,
A. I acknowledged receipt to Harvey Gold at Mr. Barber's request. This was at a meeting
that was held the 15th day of February, 1980, which Mr. Harvey Gold, Mr. Alex Gold, Mr. Huette Barber, and Mr. Henry Harrel were all present in my office. The idea was in hopes that Mr. Barber would be able to obtain some additional funds to put in a stock of cars. Mr. Gold was to make an application for a loan. The loan was to be made in the name of Harvey Gold and thus the receipt was given at Mr. Barber's instance and request, by me to the Gold's that day.
Q. Then you are telling us you never actually received the cash money from Harvey Gold or ...