
    Miller, State Revenue Agent, v. Hay et al.
      
    
    (Division A.
    Oct. 18, 1926.)
    [109 So. 791.
    No. 25565.]
    Counties. Evidence held not to authorize removal of. state revenue agent from control of suit t® foreclose trust deed securing alleged illegal loan from county bond seeking fund.
    
    Evidence held not to authorize removal of state revenue agent from control of suit instituted by him for foreclosure of trust deed securing alleged illegal loan from county bond sinking fund on theory that he was not conducting action in such manner as represented best interests of county.
    Appeal from chancery court of Washington county.
    Hon. E. N. Thomas, Chancellor.
    Suit by W. J. Miller, state revenue agent, against J. C. Hay and wife and Torrey Wood and others, as members of the board of supervisors of Washington county, wherein defendants last named filed a petition asking that the suit, be taken out of the hands of the plaintiff, and that the board be permitted to intervene and take full charge. Decree authorizing the intervention, and plaintiff appeals.
    Reversed, and remanded.
    See, also, preceding cases, in this volume; also reported 106 So. 818; 1091 So. 16.
    Argued orally by M. P. Lowrey, for appellant, and 8. V. Anderson, for appellee.
    Reporter’s Note: Points of law growing out of this litigation were decided in two former opinions set out in this volume immediately preceding this decision on the merits. Briefs of counsel on the law, are there set out at length. Space here forbids setting out the elaborate arguments on the facts, by Boone, Lowrey <£ Boone and J. H. Sumrall, for appellant, and 8. V. Anderson and Percy & Percy, for appellees.
    
      
      Corpus Juris-Cyc. References: Counties, 15CJ, p. 665, n. 67.
    
   Cook, J.,

delivered the opinion of the court.

W. J. Miller, state revenue agent, filed a bill in the chancery court, for the use and benefit of Washington county, against J. C. Hay and his wife, Vivian E. Hay, and Torrey Wood, W. N. Jeffreys, C. C. Dean, and George F. Archer, members of the board of supervisors of Washington County for'the term beginning in 1920 and ending January 1, 1924, and the sureties on their official bonds, charging, in substance, that in December, 1923, the said board of supervisors had loaned to the defendant J. C. Hay the sum of twenty-six thousand seven hundred forty-eight dollars and thirty-one cents out of the bond sinking funds of said county, which said loan was secured by a deed of trust on real estate of the value of only sixty, thousand dollars; that the said loan was1 illegal and fraudulent, for the reason that the sum loaned was largely in excess of the amount of such funds that might lawfully be loaned upon security of the value named; that the said unauthorized and illeg'al loan was made by collusion between the said members of the board of supervisors and the said defendants J. C. Hay and his wife, Vivian E. Hay; that by reason of the violation of. the statute then in force regulating such loans the members of the board of supervisors became personally liable for the amount of the loan, and especially fob any loss sustained by the county by reason of the illeg’al disposition of said funds; that the said defendants J. C. Hay and Vivian E. Hay were estopped to, take advantage of the said illegal 'and invalid actions of the board of supervisors in making said attempted loan, and, consequently, the complainant has the right to have the said deed of trust foreclosed and the proceeds applied to such decree as might be rendered against the several defendants. There were alternative averments in the bill to the effect that in any event a portion of the indebtedness was past due, and tbe complainant was entitled to bave tbe entire indebtedness declared to be due, and "to bave tbe security foreclosed, but, since tbe merits of tbe cause are in no wise involved in this appeal, we deem it unnecessary to set forth tbe averments of tbe bill in detail.

Tbe several defendants filed demurrers and answers to tbe bill of complaint, and on October 19,1925, tbe complainant filed witb tbe chancery clerk a lis pendens notice, and tbe same was properly recorded in tbe office of tbe chancery clerk.

On tbe 27th day of October, 1926', tbe board of supervisors filed a petition charging that tbe revenue agent was not representing tbe best interest of Washington County in bis manner of conducting tbe litigation, but was1 acting in a manner hostile thereto; that tbe best interest of tbe county required that tbe management and control of tbe suit should be taken out of tbe bands of tbe revenue agent and placed witb, tbe board of supervisors, to be conducted solely by its attorney, and praying that tbe board be permitted to intervene in tbe suit and take full charge and control of same. Tbe grounds for tbe removal of tbe revenue agent, as stated in tbe petition, were, in substance, that, be failéd and refused to comply witb a request of tbe board of supervisors to dismiss tbe suit, and that, at a time when tbe defendant J. ,0. Hay was negotiating for, and bad practically consummated, a loan from an insurance company in an amount sufficient to pay bis indebtedness to tbe county, tbe revenue agent filed witb tbe chancery clerk tbe lis pendens notice, and also notified tbe agent of tbe insurance company that any settlement of tbe loan should be made through tbe office of tbe revenue agent, otherwise tbe suit would be proceeded witb for tbe commissions due tbe revenue agent, and that by so doing be pursued a course which be well knew would render tbe loan impossible, and which was calculated to cause a loss to the county of Washington, and a great loss and expense, possibly the loss of his property, to the said J. C. Hay, a taxpayer of Washington County.

Hpon the hearing] of this motion, there were introduced in the evidence two letters written by the attorneys for the revenue agent, one addressed to the defendant J. G. Hay, and the other addressed to the agent of the insurance company which was negotiating with Hay for a loan. The letter to Mr. Hay notified him that information had been received that he was negotiating a loan on the property, and would attempt to make payment of his loan to the county througfi. the board of supervisors, thereby ignoring the revenue agent; that it' would be the contention of the revenue agent, that he had the sole authority to collect and receive the amount due the county, and for which suit was pending; and that a cancellation of the deed of trust upon payment to any one other than the revenue agent would not be recognized by him, but the pending suit would be proceeded with to collect the twenty per cent commission due the revenue agent, as provided by law; and that he would endeavor to subject the land involved to foreclosure under the deed of trust for the purpose of paying this commission. The letter to the agent of the insurance company was of similar import to the letter to H!ay, but, in addition, it was expressly stated that the revenue agent was not attempting to thwart Mr. Hay’s efforts to procure a loan on the property involved in the litigation, but, on the contrary, he would be glad to co-operate with Mr. Hay in procuring the loan, and would execute the necessary cancellation of the deed of trust upon the payment to him of the amount of the indebtedness for which the suit was pending. It was also shown that upon the filing of the lis pendens notice and the receipt of this letter from the revenue agent the agent, of the insurance company advised his principal to abandon the negotiations for the loan. At the conclusion of the testimony on this motion, the chancellor entered a decree adjudging that the revenue agent was not properly and in good faith conducting the litigation for the interest of Washington County, and ordering that the revenue agent he entirely deprived of the power and authority to represent the county in said litigation, and that the board of supervisors be allowed to intervene and take full control and exclusive charge of the said litigation through its own attorney, and directing the said board of supervisors to appear and file such appropriate pleadings and take such action as it deemed best.

It will be unnecessary to here pass upon the question as to the power of the court to entirely remove from the control of a, suit one representative of the county and substitute another where several different officers are by statute given concurrent right to sue on behalf of a county. If it be conceded that the court has such power, we are clearly of the opinion that the facts shown in this record did not justify the exercise of such power. The revenue agent is by statute authorized to sue on behalf of the county, and the merits of the present suit could not be passed upon or determined upon the hearing of this motion, and the exercise of the right to remove the revenue agent in this case could only be based upon the fact that he filed a lis pendens notice and wrote the two letters hereinbefore referred to. The suggestions and contentions made by the revenue agent in these letters were in accord with the holdings of this court in prior decisions, and especially the case of Miller v. Henry, 139 Miss. 651, 103 So. 203, and there was nothing therein which would authorize or justify his removal from all control of the litigation. Consequently, the decree of the court so removing him and substituting the board of supervisors as complainant will be reversed; and the cause remanded.

Reversed and remanded.  