Blount v. Miller

• Decision Date: 01 April 1935
• Docket Number: 31479
• Citation: 172 Miss. 492,160 So. 598
• Court: Mississippi Supreme Court
• Parties: BLOUNT v. MILLER

160 So. 598

172 Miss. 492

BLOUNT v. MILLER

No. 31479

Supreme Court of Mississippi

April 1, 1935

Division A

Suggestion Of Error Overruled, April 29, 1935.

APPEAL from the circuit court of Leflore county HON. S. F. DAVIS Judge.

Replevin by Frank Miller, trustee, against J. A. Blount. From a judgment in favor of plaintiff, defendant appeals. Reversed and remanded.

Reversed and remanded.

Colson & Guy, of Greenwood, for appellant.

The trial court committed error in permitting appellee to introduce testimony in rebuttal tending to prove an open account against appellant in order to show a balance due on the note, such evidence being evidence in chief.

Southern R. Co. v. Hays, 78 Miss. 319.

The trial court committed error in receiving testimony on the part of appellee tending to prove an open account against appellant barred by the statute of limitation over the objection of appellant.

Sec. 2299, Code of 1930; Hambree v. Johnson, 119 Miss. 204.

The trial court committed error in applying credits of payments made by appellant on the last items of the open account against him in order to keep the note alive and showing a balance due.

Duffy v. Kilroe, 116 Miss. 7, 76 So. 681.

We respectfully submit that the first items in cash and goods and merchandise advanced by Mr. Wilson to Mr. Blount constituted the consideration for the eight hundred dollar note, and when the eight hundred dollar note had been taken up in cash and merchandise the remainder of the advances were made on open account.

The lien of the deed of trust was extinguished on December 17, 1929, by reason of Mr. Wilson then having sufficient proceeds from cotton sold and other credits before that date given, to more than pay the eight hundred dollar note and the open account, or the account in full.

Pollard & Hamner, of Greenwood, for appellee.

We submit that when the appellee, plaintiff below, introduced his note and trust deed and rested, he was then entitled to judgment unless the appellant, defendant below, introduced evidence to overturn the plaintiff's case; and when contradictory evidence was offered by the defendant the burden then shifted to the plaintiff to overcome the defendant's evidence in rebuttal.

The trust deed in issue specifically provides that moneys or things advanced from one year from date thereof "shall be secured by this instrument, bear interest at the rate of eight per cent per annum, be payable on demand and be collectible by sale of the property and choses in action herein assigned and conveyed as hereinabove provided for." This verbiage constitutes a clear written obligation to pay with eight per cent per annum interest, and is as binding and effective as a note for a fixed amount, and being a written promise to pay comes clearly within the six-year statute of limitations.

We submit, first, that Wilson had the right to apply payments on the account as he chose in the absence of any direction from Blount, the debtor, as to such application, and secondly, that the application of payments can make no difference in the liability of Blount in this replevin suit because the trust deed secured not only eight hundred dollars, but all sums of money advanced within one year from the date of the instrument, and the trust deed itself becomes a written obligation to pay, and is governed by the six-year statute of limitations just as the specific note for eight hundred dollars is governed.

The deed of trust in question lifts the indebtedness in excess of eight hundred dollars from appellants to Wilson out of the open account claimed and out of the three-year statute of limitations, and makes of it a written promise to pay, and a written promise of eight per cent per annum interest thereon.

Section 1946, Code of 1930; Witczinski v. Everman, 51 Miss. 841; Gray v. Helm, 60 Miss. 131; Williams v. Butts, 124 Miss. 661, 87 So. 145.

OPINION

Smith, C. J.

This is an action of replevin begun in a county court, in which the appellee was the plaintiff, and a judgment there in his favor was affirmed on appeal to the circuit court. The case was tried in the county court without a jury.

The evidence discloses that on December --, 1928, the appellant rented farm land from Wilson for the year 1929, and Wilson agreed to advance the money and supplies with which to make a crop on the land rented. On December 20, 1928, the appellant executed a deed of trust to Wilson on crops to be raised by him during the year 1929, and certain other personal property, including two mules, to secure the payment of a promissory note of eight hundred dollars due November 15, 1929, and any additional amount he might owe Wilson for advances made him for the making of the crop. Payments were made by the appellant on the debts secured by this deed of trust, but not sufficient in amount for the payment of both the note and the advances made in addition thereto.

The appellant's claim is that, when his payments are properly applied, the note will appear to have been paid; and, though a balance will appear to be due on the additional advances made him, the debt evidenced thereby is barred by the statute of limitations, section 2299, Code 1930. The appellee's contention is that, when the payments are properly applied the debt for the advances made, in addition to the note, will appear to have been paid, but there will...