Before McMILLIN, P.j., Coleman, And Southwick, JJ.
The opinion of the court was delivered by: McMILLIN, P.j.
DATE OF JUDGMENT: November 7, 1996
TRIAL JUDGE: HON. J. LARRY BUFFINGTON
COURT FROM WHICH APPEALED: SIMPSON COUNTY CHANCERY COURT
NATURE OF THE CASE: CIVIL - REAL PROPERTY
TRIAL COURT DISPOSITION: WASTE COMMITTED BY APPELLANTS IN THE AMOUNT OF $2500; ATTORNEYS FEES DENIED
DISPOSITION: REVERSED AND REMANDED
¶1. This case comes before the Court as an appeal from a judgment rendered by the Chancery Court of Simpson County. The case was commenced by the appellants as an injunction suit to halt a pending foreclosure of a real estate deed of trust. The appellees, who were the beneficiaries in the instrument, had commenced foreclosure, not because the appellants had defaulted in payment of the secured debt, but because they believed the appellants had committed waste on the security property. The chancellor found that waste had been committed and that this constituted a breach of a covenant against waste in the deed of trust. However, the chancellor conditionally stayed the foreclosure to permit the appellants an opportunity to rectify the waste by prepaying to the appellees an amount equal to the diminished value of the collateral attributable to the waste. The appellants, dissatisfied with that result, have appealed. We have concluded that certain aspects of the appeal have merit and that the present judgment must be reversed and this cause remanded for further proceedings.
¶2. Jerry and Martha McNeese, the appellants before this Court, purchased a tract of real property in 1988 from George and Jo Ann Hutchinson, the appellees. The purchase price of $53,000 was deferred to be paid by the McNeeses in 212 monthly installments of $250 each. This deferred purchase price was evidenced by a promissory note and was secured by a deed of trust on the property executed by the McNeeses in favor of the Hutchinsons. The deed of trust contained a covenant that the McNeeses would "keep the Property in good repair and shall not permit or commit waste, impairment or deterioration thereof."
¶3. Among other improvements, the property contained a swimming pool that, over time, had deteriorated in condition to the point that, in 1995, it was unusable without extensive repairs. The McNeeses, rather than repairing the pool, elected to fill it in. The Hutchinsons learned of this and, convinced that this action had diminished the value of their collateral by the amount of $7,000, made demand for payment in that amount. The McNeeses failed to respond to the demand and the Hutchinsons commenced a non-judicial foreclosure of the deed of trust as a remedy for this perceived breach of the covenant against waste contained in the instrument.
¶4. Prior to the sale date, the McNeeses filed this chancery proceeding seeking to enjoin the foreclosure. They also sought actual damages, punitive damages, and attorneys fees based on a claim that the act of instituting foreclosure was without justification and thus a tortious act. The chancellor issued a temporary restraining order that halted the scheduled foreclosure. The parties then agreed to a trial on the merits at a subsequent date, thereby leaving the issue of the propriety of foreclosure in abeyance. After a hearing on the merits, the chancellor found as a matter of fact that the act of filling up the swimming pool constituted waste and was thus a breach of the deed of trust covenant. He additionally found that the swimming pool had added a value of $2,500 to the security property so that the destruction of the pool had damaged the Hutchinsons' security position by that sum.
¶5. By virtue of that finding, the chancellor concluded that foreclosure was an available remedy to the Hutchinsons. However, exercising his inherent authority to grant equitable relief, the chancellor temporarily stayed the reinstitution of foreclosure proceedings and offered the McNeeses a period of 120 days to pay to the Hutchinsons the sum of $2,500 in addition to those monthly installments regularly due. This additional sum was to be credited as a prepayment on the McNeeses' installment obligation with the understanding that the credit would be given to the last installments to become due under the note. In other words, if the McNeeses elected to make this prepayment, they would be obligated to continue to pay the regular monthly installments; however, their obligation would end and the debt would be paid in full at the point where ten installments would otherwise have remained under the original terms of the note. In the event the McNeeses did not make this prepayment within the allowed 120 day period, the chancellor ruled that the Hutchinsons would thereafter be free to reinstitute foreclosure.
¶6. Though the McNeeses state that they are presenting two issues for review on appeal, one of the issues as drafted by the McNeeses actually raises three separate issues of law. We will, therefore, ...