Albritton v. Williams
| Citation | 186 So. 324,184 Miss. 857 |
| Decision Date | 13 February 1939 |
| Docket Number | 33573 |
| Court | United States State Supreme Court of Mississippi |
| Parties | ALBRITTON v. WILLIAMS |
Suggestion Of Error Overruled March 13, 1939.
APPEAL from the chancery court of Perry county HON. D. M. RUSSELL Chancellor.
Suit by Mrs. Eunice Williams against L. A. Albritton for an injunction restraining defendant from cutting and removing timber. From a decree for complainant, defendant appeals. Reversed and remanded.
Reversed and remanded.
A. T L. Watkins, of New Augusta, and J. P. Edwards, of Mendenhall for appellant.
The trustee is the holder of the legal title, notwithstanding the owner may be in possession or may occupy, until forfeiture, and it would be futile to attempt to divest the title by giving a second mortgage.
19 Standard Cyc. of Procedure, page 941.
In construing contracts the intention of the parties must be ascertained from the instrument itself, giving " effect" to every clause and word.
9 Cyc., page 577, A and B, 2 and 3, page 578, 5, page 579, 6, page 580, 582, D, page 583, 6, page 584, 585, H, page 587.
When the restricting clause "this in renewal and extension of a certain deed of trust given by S. F. Mills and Frances Mills his wife" (in possession of Perry County Bank) was written into the printed form, it was not for pastime, it has an important meaning, and could have meant but one thing, Mr. Albritton had already mortgaged the timber, and it was still in force and effect, and Perry County Bank ratified that stipulation, in that it did not cancel the Mills trust deed until five months after the irregular foreclosure, having record knowledge and personal knowledge of its existence. The Mills trust deed recites "except the timber, " the Mills trust deed was not cancelled until November 6, 1930. The Albritton trust deed against the timber, dated February 10, 1928, was never cancelled.
The trust deed from Albritton to Perry County Bank excluding the timber, dated January 29, 1929, foreclosed June 2, 1930, the bank evidently ratified and confirmed the Mills trust deed, Albritton's trust deed being a junior or second mortgage and its holding in tact the Mills trust deed or a list lien on land, except the timber, and it is continued long after the attempted or fraudulent foreclosure.
A trustee must follow the mode, manner and terms of the instrument in foreclosing, else the sale will not be valid, if there is any material variation.
McCaughn v. Young, 85 Miss. 277.
A junior mortgage must pay into the hands of the trustee the full amount of his bid, for first mortgagee.
McPherson v. Davis, 95 Miss. 328.
A mortgagee cannot bid at his sale, unless the mortgage confers that right, especially when everyone except himself is prohibited from bidding as in this case.
Boyd v. Clark, 52 Miss. 623, 80 Miss. 31.
If Albritton had attempted to give Perry County Bank a lien on the timber, it would have been a nullity, under section 2118, Code of 1930, he could not have lawfully conveyed and the right and lien of D'Lo Guaranty Bank was not affected under section 2152 of the Code.
Perry County Bank is estopped to deny its acceptance of the junior trust deed from Albritton, in its entirety, for the manifest reason, it acted on said contract, by foreclosing and is chargeable with full knowledge and assent to every word in the contract, it is chargeable with full knowledge of the restrictive clause "except the timber."
When an instrument refers to some other writing, it becomes a part of the contract, as effectively as if copied therein.
An instrument conveys only the property described therein and which was manifestly intended to be conveyed.
Finkbine Lbr. Co. v. Saucier, 116 So. 763.
We respectfully urge the court to carefully consider all of the foregoing assignments and we verily believe that the decree of the Chancery Court should be reversed and a judgment of this court entered cancelling any claim of Perry County Bank or its assigns to the timber on N1/2 of NE1/4-SE1/4 of NE1/4 sec. 17 T. 2 N, R. 10 West, and extend the time in which appellant may remove said timber, for such time as the court finds that he has been prevented from removing the same, by injunction or otherwise; and we respectfully urge the court to enter judgment on the sworn answers and items of damages as filed, it not being denied by either plea or proof.
Hannah, Simrall & Foote, of Hattiesburg, and H. D. Young, of New Augusta, for appellee.
We believe that the only question to be decided by this court is whether these words in appellant's deed of trust to Perry County Bank, "This deed of trust is in renewal and extension of a certain deed of trust given on the aforesaid land by S. F. Mills and Frances Mills, his wife, " serve to except from said deed of trust the timber on said land, and whether the lien of that deed of trust was properly foreclosed.
A cardinal rule of construction is that all contracts and other instruments shall be construed, if possible, so as to give effect to all of its provisions and thus to effectuate the intention of the parties thereto, and that for the purpose of ascertaining this intention the entire instrument and all of the circumstances surrounding the parties should be consideredz The court should, as nearly as possible, assume the position of the parties to the...
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Feliciana Bank v. Manuel & Sessions, L.L.C.
...several deeds of trust either specifically on timber or specifically excluding timber had been executed. Id.; Albritton v. Williams, 184 Miss. 857, 186 So. 324 (1939). The Mississippi Supreme Court held that when a deed of trust was executed "without reserving the timber, [it] thereby conve......
- Albritton v. Williams