Butler Mercantile Co. v. Cruise

• Decision Date: 24 February 1936
• Docket Number: 32099
• Citation: 175 Miss. 200,166 So. 325
• Court: Mississippi Supreme Court
• Parties: BUTLER MERCANTILE CO. v. CRUISE et al

166 So. 325

175 Miss. 200

BUTLER MERCANTILE CO. v. CRUISE et al

No. 32099

Supreme Court of Mississippi

February 24, 1936

Division B

Suggestion Of Error Overruled, April 6, 1936.

APPEAL from chancery court of Pike county HON. R. W. CUTRER Chancellor.

Suit between Butler Mercantile Company and C. L. Cruise and others. From an adverse decree, Butler Mercantile Company appeals. Affirmed.

Affirmed.

Butler & Snow, of Jackson, and C. T. Gordon, of Liberty, for appellant.

The deed of trust in favor of the Butler Mercantile Company constituted a valid first lien on the crop grown in 1931.

There was no evidence showing that Cruise owed the Hyman Mercantile Company, or its assignee, anything under the deed of trust to the Hyman Mercantile Company.

Everman v. Robb, 52 Miss. 653; McCown v. Mayer, 65 Miss. 537; Stadecker & Son v. Loeb, 67 Miss. 200; Maynard v. Cock, 71 Miss. 493; Butt v. Ellett, 19 Wall. (U. S.) 544, 22 L.Ed. 183.

It is a matter of common knowledge that this form of deed of trust is in general use throughout the southern cotton-producing section of Mississippi, at least, and has been for a great many years.

If such a deed of trust is not good as to subsequent purchasers, or encumbrances, for value, it is certainly good between the parties.

Everman v. Robb, 52 Miss. 653; Bascot v. Varnado, 91 Miss. 825; Holroyd v. Marshall, 10 House of Lords, 191.

In the absence of some evidence showing or tending to show an indebtedness to Hyman Mercantile Company secured by a deed of trust on the crop in question or evidence showing that the First National Bank had bought the cotton, it is perfectly clear that the Butler Mercantile Company is entitled to enforce its lien.

When the chancellor dismissed the bill, he rendered a decree for the costs against appellants. This was manifest error. Even if the bill should have been dismissed, the cost only incident to the trial in the chancery court should have been assessed against appellant, and the judgment for costs theretofore entered by the circuit court should have been in no way affected or limited.

J. Gordon Roach, Junior O'Mara and Williams & Hunt, all of McComb, for appellees.

The chancery court shall have power to decree that either party shall pay the costs of any suit in equity, or that the same may be divided as may appear equitable.

The chancellor was correct in taxing the appellants with all costs in this cause.

Section 672, Code of 1930; Liberty Mercantile Co. v. Allen, 134 Miss. 35, 98 So. 774.

It is universally known and this court will take judicial knowledge of the fact that the southern farmer must have capital each and every year consisting of farm implements, commercial fertilizer, groceries, feed and other supplies in order that they might produce agricultural products, particularly cotton. This fact was known by the Butler Mercantile Company at the time the Butler Mercantile Company at the time the Butler Mercantile Company refused to furnish Cruise supplies in the year of 1931, and at the time the deed of trust was taken by the Butler Mercantile Company.

A majority of appellants' authorities deal with the question of the "potential existence" of the property mortgaged. This question is not now before the court for the reason that the circuit court of Pike county, Mississippi, held favorable toward appellants in passing upon this question of law when the circuit court reversed the judgment of the county court of Pike county, Mississippi, and ordered a de novo trial. The chancery court, the court from which this case is appealed, did not decide this cause upon a question of a "potential existence" of the property mortgaged but upon other grounds as are set out in the decree of the chancery court.

The other authorities relied upon by appellants deal with cases in which the mortgagor was actually furnished with supplies and necessities at all times by the mortgagee. These are not the facts in the case at bar and as stated, appellants refused and failed to furnish Cruise with supplies or necessities from which he could produce the property involved in this controversy. If it had not been for the furnishing of the supplies by the Hyman Mercantile Company to Cruise in the year of 1931, the property involved herein would not have been produced and would not be in existence. The whole of this situation was brought about by the action of the Butler Mercantile Company, one of the appellants in this cause, by refusing to furnish supplies to Cruise in the year of 1931.

Argued orally by George Butler, for appellant.

OPINION

Anderson, J.

This is an appeal from a decree of the chancery court of Pike county adjudging that the mortgage given by appellee, C. L. Cruise, to the Hyman Mercantile Company, on crops produced by him and his tenants during the year 1931, for advances made to him by the mercantile company during that year, was superior to a mortgage executed by him in the early part of 1930 in favor of appellant on the same crops but for advances made to produce the crops of the previous year.

The cause originated in a replevin suit in a justice of the peace court. Six bales of lint cotton were involved. Its course from there to the chancery court is very unusual. It was transferred by the justice of the peace, to the county court and tried, and appealed to the circuit court where a new trial was ordered and by agreement of the parties the cause was transferred to the chancery court. There it was proceeded with, of course, as a cause in equity. There is no controversy about the facts; therefore, only questions of law are involved.

Cruise was unable to make a crop on his lands for the year 1930 without financial help, for which he applied to appellant. Appellant agreed to help him, and on the fifteenth of February of that year Cruise executed a mortgage on all crops to be grown by himself and his tenants on his lands, and any other that he might control during the years 1930 and 1931, to secure advances by appellant as needed in 1930, including an indebtedness of $ 54.50 then already incurred. The indebtedness was due August 1, 1930. Appellant accordingly made advances. Out of the crops Cruise lacked about $ 200 of paying appellant all he was due him.

On or about the beginning of the year 1931, Cruise found as he had the year before, that he could not make a crop for that year without help. He applied again to appellant for advances to enable him to make a crop; appellant denied his request on the...