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OSCAR P. LABARRE AND HUETTE A. BARBER v. HARVEY A. GOLD AND JOHN BELL

SEPTEMBER 16, 1987

OSCAR P. LABARRE AND HUETTE A. BARBER
v.
HARVEY A. GOLD AND JOHN BELL



EN BANC.

HAWKINS, PRESIDING JUSTICE, FOR THE COURT:

This case comes before us after we remanded the case for retrial in Gold v. LaBarre, 455 So.2d 739 (Miss. 1984). On remand the chancellor awarded a joint and several money judgment against Oscar LaBarre and Huette Barber for $48,760.00 plus $25,731.84 interest accumulated from the date of entry. LaBarre and Barber appeal that judgment. Finding no error, we affirm.

FACTS

 The facts of this case are unusual. The problems began in the early '70s when Huette Barber and Norman Fields agreed to trade a 16-acre tract of land. At Barber's request, Fields retained title to both parcels of land until Barber told Fields what to do with Barber's parcel.

 Barber's plan was to remain the "real owner" of the land while using "straw men" to hold record title to the parcel. In this way Barber sought to avoid any judgments held against him and attachment by creditors. On February 7, 1979, Fields

 transferred record title of Barber's parcel to Henry Harrell. Harrell borrowed money from the Bank of Vicksburg by pledging the record title as security for a loan. Barber used the proceeds of this loan to raise money for his used car business.

 In February, 1980, Barber found he needed more money to purchase cars for his used car business. Barber thought he could fix up the house on the property and sell the house and land for a profit. Barber went to his accountant, Alex Gold, for help in securing another loan. Alex Gold called John Bell, an individual, prospective lender. Bell told Gold that while he would not loan the money to Barber, he would loan it to Gold.

 On February 14, 1980, Bell took $46,000.00 to Alex Gold's office. Because Alex Gold was in poor health, the parties planned to use Gold's son, Harvey Gold, to hold title for Barber. Harvey Gold signed a note for $48,760 to Bell and held title for Barber's benefit. Bell was to receive 10% interest on the $48,760 note, plus an additional $7,500 when the "Barber" property sold.

 The following day Harrell, Barber, Alex Gold, Oscar LaBarre met in LaBarre's law office. At the meeting Harrell transferred the property to Harvey Gold and LaBarre and Barber dispersed the $46,000.00; $37,966.53 of which was used to pay off the loan Harrell made to the Bank of Vicksburg; $7,500.00 of the money was given to Harvey Gold to the repair the house on the property; $500 was given to Harvey Gold for serving as Barber's title holder. LaBarre signed a receipt in Barber's behalf to Harvey Gold for the $37,966.53.

 Later LaBarre issued a certificate of title which camouflaged the fact that Barber was the true owner of the property. LaBarre wrote Gold informing him that he had applied for title insurance for Gold and thanked Gold "for the opportunity to be of service."

 After the meeting on February 15, Alex Gold was unable to negotiate a loan for Barber or sell the house. After ten months Alex Gold approached a real estate broker, Johnny Jabour, to help him move the property. Jabour agreed to become the next record holder and obtained an $80,000.00 loan on the property for which he would receive $10,000 up front as well as a 6% commission on the ultimate sale of the property. Jabour also agreed to allow Barber to live in the house pending its sale if Barber paid the interest on the loan and the taxes and insurance on the property.

 At his father's direction, on April 6, 1981, Harvey Gold went to LaBarre's office, signed a deed conveying the property to Jabour, and left the deed with LaBarre for delivery at the closing the following day.

 Because Jabour knew of Gold's and Bell's interest in the transaction, Jabour told Bell and Gold that the loan on the property would be closed at 3:00 p.m. at the American Bank on April 7, 1981. Despite this notice Bell and Gold failed to appear at the closing.

 The next day James Cole, president of the American Bank, LaBarre and Jabour met at Cole's office at the bank to close the loan. Jabour transferred the title to the bank for its trustee. The bank, in turn, issued an $80,000.00 check payable to LaBarre and Jabour.

 The parties left Cole's office and Jabour told Barber and LaBarre that he would call Gold to find out how much Gold was owed. Jabour could not reach Gold so he called Bell. Jabour handed the phone to LaBarre who wrote down the amount Bell was due on a slip of paper. After LaBarre got off the phone, Jabour asked LaBarre to go back to LaBarre's office to make out checks for everyone. LaBarre responded, "Huette's (Barber) got too many judgments against him, he wants it to be done in cash." So the parties went to a teller and Jabour and LaBarre signed the check. LaBarre took the $80,000.00, gave Jabour $10,000.00, kept $800.00 for his fee and gave the remainder to Barber, who put the money in a bank bag. LaBarre told Jabour that they were going to take the money down to Harvey Gold's office within 30 minutes and pay him off. The next day Harvey Gold called LaBarre and asked him, "Where is Barber?"

 Neither Harvey Gold nor Bell received any of the proceeds of the $70,000.00 which Barber and LaBarre received at the bank.

 Alex Gold's father died and Harvey Gold remained liable to Bell for the promissory note. As a result Harvey Gold brought suit against the American Bank; Landman Teller, Jr., the bank's trustee; attorney Oscar LaBarre; Johnny Jabour; and Huette Barber. The bank, as trustee, and Jabour were dismissed as to both the monetary judgment against them and any claim affecting their title. The suit was reduced to the issue of conversion of Gold's money by LaBarre and Barber. After remand by this court, the chancellor awarded a money judgment to Bell and Gold. LaBarre and Barber appealed that judgment.

 LAW

 DID LABARRE AND BARBER CONVERT THE PROCEEDS RECEIVED FROM THE SALE OF THE HOUSE FROM GOLD AND JABOUR?

 We remanded this case to determine whether Gold's funds retired the indebtedness that existed on the property on February 15, 1980. Resolution of this issue necessarily determines whether Gold had an interest in the "Barber" property.

 Where a grantee retains title to land and holds it for the benefit of another in order to secure a loan made by the grantee, the conveyance is a mortgage. The mortgage "is evidenced by a deed absolute (and the grantee) is entitled to retain title until payment of the claim for which it is held for security." Osborne, Mortgages, 91 (1970). See also Medders v. Ryle, 458 So.2d 685 (Miss. 1984); Conner v. Conner, 238 Miss. 471, 119 So.2d 240 (1980).

 The chancellor found that John Bell delivered $46,000 to Alex Gold and Harvey Gold, and that Alex Gold and Harvey Gold in turn lent the money to Huette Barber. He found Gold's loan was evidenced by a receipt for $37,966.53 dated February 15, 1980, which LaBarre signed for Barber's benefit. Further, the chancellor found: "The balance of the money was put into a special account and was paid by Mr. Harvey A. Gold and Mr. Alex Gold to pay for work being done on the house . . ."

 On appeal the appellant argues that Barber, not Bell, was the source and owner of funds which were the subject of LaBarre's receipt to Gold. True, in their testimony, both LaBarre and Barber denied any knowledge of Bell's loan to Gold for Barber's benefit. The chancellor, however, had ample evidence on which to base his finding.

 Gold, Bell and Jabour all contradicted LaBarre's claim of ignorance as to the source of the money. LaBarre could not sufficiently explain why he signed a receipt to Gold for $37,966.53 on February 15, 1980. Moreover, these transactions arose because Barber needed money for his used car business. If Barber already had the money to retire the indebtedness on ...


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