Ballard v. Commercial Bank of Dekalb
| Docket Number: | 2007-CA-01406-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 10-09-2008 Opinion Author: Waller, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Real property - Foreclosure - Valid deed of trust - Lack of consideration - Fraud Judge(s) Concurring: Smith, C.J., Diaz, P.J., Carlson, Graves, Dickinson, Randolph and Lamar, JJ. Dissenting Author : Easley, J., without separate written opinion. Procedural History: Bench Trial Nature of the Case: CIVIL - REAL PROPERTY |
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| Trial Court: |
Date of Trial Judgment: 07-05-2007 Appealed from: Chickasaw County Chancery Court Judge: Kenneth M. Burns Disposition: The chancellor authorized Commercial Bank to proceed with foreclosure on Ballard’s property based upon either or both of Ballard’s deeds of trust. Case Number: 2004-0058-2-B |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | EDWARD S. BALLARD |
WES W. PETERS |
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| Appellee: | COMMERCIAL BANK OF DEKALB | KEITH R. RAULSTON | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Real property - Foreclosure - Valid deed of trust - Lack of consideration - Fraud |
| Summary of the Facts: | Commercial Bank of DeKalb sought to foreclose on Edward Ballard’s property pursuant to two deeds of trust which Ballard had executed in its favor. Thereafter, Ballard filed suit against Commercial Bank, seeking cancellation of the two deeds of trust. The chancellor entered his final judgment, authorizing Commercial Bank to proceed with foreclosure on Ballard’s property based upon either or both of Ballard’s deeds of trust. Ballard appeals. |
| Summary of Opinion Analysis: | Ballard argues that the second deed of trust is not a valid deed of trust. He first argues that the second deed of trust was an attempt to reform the first deed of trust, which failed to list the notes. However, the second deed of trust was not an effort at reformation but constituted a renewal and extension which imposed additional terms on the parties. Ballard also seeks to void the first deed of trust, arguing that the deed of trust is unambiguous on its face and that the chancellor erred in relying upon extrinsic evidence. While the chancellor alluded to the parties’ intent, he based his ruling upon the plain language of the second deed of trust. Ballard argues that the second deed of trust is void for lack of consideration and thus cannot stand on its own. An extension of time to pay an existing note is sufficient consideration for a subsequent deed of trust. The notes in the instant case represent antecedent debt, as each note was issued to Ballard’s grandson by Commercial Bank prior to Ballard’s execution of the second deed of trust. Ballard argues that the trial court erred in dismissing his claims of fraud and misrepresentation. A person is under an obligation to read a contract before signing it, and will not as a general rule be heard to complain of an oral misrepresentation the error of which would have been disclosed by reading the contract. Ballard is charged by law with knowing the contents of any documents that he signs. This is particularly true given that Ballard, by his own admission, had an opportunity to read the first deed of trust before signing, and that he signed the second deed of trust without reading it and in the presence of his grandson and a notary. The facts support holding Ballard responsible for reading the instruments that he clearly signed. At the time he signed the first deed of trust, Ballard was sixty-eight years old. At the time he signed the second deed of trust, he was seventy-one. While Ballard did suffer from heart problems, he had no mental impairment. Furthermore, Ballard was both educated and experienced, and was no stranger to commercial loan transactions. |
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