The appellee recovered a judgment against the appellants in an action for libel. The case was before this Court once before under the style of Conroy v. Breland et al., 185 Miss. 787,189 So. 814.
The action is based on a letter alleged to have been written by the appellants, charging the appellee with having given them a deed of trust on property in her possession, but which she did not own and was without the right to encumber. The court below refused the appellants' request for a directed verdict, and, as we have arrived at the conclusion that it erred in so doing, the case will be stated in so far only as it bears on that question.
On October 28, 1937, the appellee and her husband, who were engaged in the mercantile business in Crystal Springs, were indebted to the appellant Truckers Exchange Bank in the sum of $1,450, evidenced by two notes, one for $750 and the other for $700. The first of these notes was secured by a deed of trust on real property, and *Page 247 the other by a pledge of jewelry. On that day, or shortly prior thereto, Breland, the president of and acting for appellant bank, agreed to permit the Conroys to renew these notes and to lend them $250 additional. Pursuant to this agreement, a new note from the Conroys to the bank, for $1,700, was executed by the Conroys to the bank, secured by a deed of trust on real property and the jewelry hereinbefore mentioned. The description of the property in the deed of trust, when recorded shortly after its execution in the office of the chancery clerk, and when offered in evidence in the court below, covered the home of the Conroys and another piece of real estate which they had formerly owned but had sold several years theretofore, and "all furniture and fixtures in store we now occupy on R.R. Ave." The jewelry, heretofore mentioned, was listed on the back of the note in a memorandum signed by Mr. and Mrs. Conroy, in addition to their signatures on the face of the note. The Conroys did not own a large part of the furniture and fixtures then in their "store" and being used by them.
Some time after the execution of this deed of trust, Mr. Conroy died, and Mrs. Conroy went into bankruptcy, whereupon Batton, the owner of a portion of the fixtures in the Conroy store, obtained, and was holding, possession thereof. On learning this, the trustee in the deed of trust given by the Convoys to the appellant bank, who was also its regularly retained attorney, wrote a letter to Batton informing him that the fixtures in his possession were covered by the bank's deed of trust. We will assume that the evidence discloses that this letter was written for the bank at Breland's request. Afterwards this action was brought by the appellee as set forth in Conroy v. Breland et al., supra.
One of the fundamental elements of the appellee's cause of action is the charge in her declaration that the deed of trust did not cover the furniture and fixtures when she and her husband signed and delivered it, but that thereafter it was fraudulently altered by the appellants *Page 248 by the insertion of the furniture and fixtures in the description of the property covered by the deed of trust. The only persons who could know whether this allegation was true or not were Mrs. Conroy, Breland, Carmichael, the cashier of the bank, and Mrs. Wallace, Breland's secretary, all of whom testified. Mrs. Conroy said that she went to the bank on the day the deed of trust was executed and read it. Later in the day it was brought to her home, where her husband was sick in bed, by Mrs. Wallace, the secretary of Mr. Breland, who was also a notary public. She then read it to her husband, after which the deed of trust and the note were signed by them, the deed of trust being acknowledged before Mrs. Wallace.
Mrs. Conroy, after testifying that she read every line of the deed of trust, said that she had read only the typewritten and not the printed portions thereof. She said that when she and her husband signed the deed of trust the only real property described therein was their home, that no furniture or fixtures were described therein, and that the jewelry appeared in the deed of trust, and not on the back of the note which she and her husband executed. When asked why she and her husband wrote their names on the back of the note, she said it was at Mrs. Wallace's request, for what purpose she did not know.
According to the testimony of Breland, Mrs. Wallace and Carmichael, the deed of trust and the note were prepared by Mrs. Wallace, who obtained the description of the real property from the prior deed of trust executed to the bank by the Conroys, and, at Breland's direction, added thereto the furniture and fixtures and listed the jewelry on the back of the note with two typewritten lines for the signatures of the Conroys thereunder. The memoranda on the back of the note is as follows:
"This note is secured by the following collateral:
"Deed of Trust on our home and tenant house in the City of Crystal Springs. *Page 249
"All furniture and fixtures in store now occupied by us on Railroad Ave., between Crystal Theater and Crystal Style Shop.
"Two Solitaire Diamond Ring "Three Diamond Clusters "One Diamond Bar Pin
"Two Diamond Earrings with ruby in center, which we have turned over to the Truckers Exchange Bank.
"W.E. Convoy "Mrs. Ora G. Conroy."
Breland said that Mrs. Conroy had agreed to secure the new note with the collateral to the former notes, and also by the mercantile business in which she and her husband were engaged, and that knowing he could not take a deed of trust on a mercantile stock of goods, he had the furniture and fixtures inserted in the deed of trust in lieu thereof, to which he did not specifically call Mrs. Conroy's attention.
Should the appellants' request for a directed verdict have been granted? A verdict for the appellee must rest on her testimony alone. None of the other evidence lends any support thereto, but, on the contrary, all of it is in direct conflict therewith.
In order to recover, the appellee, among other things, must prove her charge against the appellants that they fraudulently altered the deed of trust in a material particular after its execution, thereby committing the crime of forgery. Where, in a civil case, fraud involving moral turpitude or the commission of a crime is charged, the act constituting the fraud must be proven by "clear and convincing" testimony. To cite the numerous decisions of this Court so holding would be supererogatory. In a case tried to a jury whether evidence in support of a charge of fraud measures up to this standard is ordinarily for the determination of the jury; but when it manifestly falls below this standard and is not "of such a real and substantial nature that impartial men of sound judgment could reasonably believe it, and prudently act thereon," *Page 250 then the trial judge should not permit the jury to consider it, but direct them to return a verdict for the opposing party. Thomas v. Williamson, 185 Miss. 83, 187 So. 220, 221. In other words, where it is manifest that no reasonable man engaged in a search for truth, uninfluenced by improper motives or considerations (e.g., passion, prejudice, or corruption), would accept or act on the evidence, the jury should not be permitted to consider it. But formulas aside, for they cannot be all inclusive and exclusive, and ordinarily are not of great value to the trial judge, for "general propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise." Holmes, J., in Lochner v. New York, 198 U.S. 45, 76, 25 S.Ct. 539, 547, 49 L.Ed. 937, 949, 3 Ann. Cas. 1133; Hutcheson, "Judgment Intuitive," 14.
One has but to consider the testimony of the appellant to arrive intuitively and confidently at the conclusion that it cannot be safely accepted and acted on, particularly in support of such a grave charge as the one here; for it is manifest therefrom that the appellee does not accurately remember the contents of the deed of trust, and was mistaken in thinking she does. For instance, she was evidently mistaken in saying that the jewelry was not listed on the back of the note but was included in the property described in the deed of trust, and had she read the deed of trust as carefully as she now thinks she did, she would have discovered that it covered, as it evidently did, real property which she did not own and which she says she did not intend to include therein. No verdict based on this evidence should be permitted to stand; consequently, the court below should have granted the appellants' request for a directed verdict, as to which, on the evidence, there is "no room for doubt." Perry v. Clarke, 5 How. 495, 500, and numerous cases cited in 14 Mississippi Digest, Trial, 139.
Reversed, and judgment here for the appellants. *Page 251