Corder v. G. B. Sprouse & Co.

• Decision Date: 09 May 1936
• Citation: 100 S.W.2d 1001,20 Tenn.App. 486
• Parties: CORDER v. G. B. SPROUSE & CO. et al.
• Court: Tennessee Court of Appeals

100 S.W.2d 1001

20 Tenn.App. 486

CORDER v. G. B. SPROUSE & CO. et al.

Court of Appeals of Tennessee, Middle Section.

May 9, 1936

Certiorari Denied by Supreme Court Jan. 16, 1937.

Appeal from Chancery Court, Robertson County; J. W. Stout Chancellor.

Suit by F. H. Corder against the G. B. Sprouse & Co. and others. From an adverse decree, defendant J. H. Owen appeals.

Affirmed and decree entered.

R. L Peck, of Springfield, and Rutherford & Rutherford, of Nashville, for appellant Owen.

A. L Dorsey, of Springfield, for appellee Corder.

CROWNOVER Judge.

This is a suit to recover the value of a tobacco crop on which the complainant had a chattel mortgage. The original bill sought to recover the proceeds of the mortgagor's wheat, corn, and tobacco crops, but the only question before this court is as to the tobacco crop.

The chancellor found that H. J. Johnson owed F. H. Corder, on May 28, 1928, $150; that Johnson executed a mortgage to secure said note, the mortgage stating that it was on his interest in a crop of corn, wheat, and tobacco, then growing or to be planted, on the land of J. H. Owen in the Seventh civil district of Sumner county; that the mortgage was recorded; that the tobacco crop was raised by said defendant Johnson in said civil district, but not on land belonging to the defendant Owen, but on land he had bid off at a sale and on which the said Owen made the contract with said Johnson to produce said crop and exercised toward the said Johnson the relation of landlord. The chancellor decreed that the description in the mortgage was sufficient and valid and that Owen was estopped to deny the sufficiency of said description or the validity of the mortgage; that Owen took charge of said tobacco and sold and collected for the same $327; that after paying himself as landlord for all supplies furnished by him as landlord to Johnson and for which he had a lien for $56.75, he had a balance in his hands of $270.25, which he applied to the payment of various bills owed by Johnson. He rendered decree against Johnson and Owen in the sum of $214.33, the amount of the principal ($150) plus interest to that date, August 9, 1935, and made Sprouse & Co. secondarily liable.

Defendant J. H. Owen filed a petition for a rehearing which was overruled, to which he excepted, and appealed to this court and has assigned errors, which are, in substance, as follows:

(1) The chancellor erred in holding that Owen was estopped to deny the sufficiency of said description and the validity of the mortgage.

(2) The chancellor erred in failing to hold that the mortgage was void for uncertainty in the description of the property upon which the crop was grown.

H. J. Johnson, on December 12, 1925, executed a note to F. H. Corder, the complainant, for $266.65, for "borrowed money." There were several credits on the note.

On May 28, 1928, Johnson executed a chattel mortgage to secure this note on his "wheat, corn and tobacco crop growing and to be grown for this, the year 1928, on the lands of J. H. Owen and in the field usually called the ___ field, lying ___ to wit, my entire 1/4 interest in 12 acres of wheat, and my entire 1/2 interest in 4 acres of tobacco, and 12 acres of corn lying in the 7th Civil District of Sumner County, Tennessee."

Owen took charge of said tobacco crop grown by Johnson and sold the same to Sprouse & Co. and collected for it $327.

Owen had a supply bill against Johnson, which was a lien on the crop, amounting to $56.75. After paying this amount to himself, he had in his hands $270.25 belonging to Johnson, which he has disbursed at Johnson's direction, without paying Corder.

1. Appellant Owen contends that the mortgage was invalid because of insufficiency of the description of the land on which the crop was grown and incorrect description of the interest of Johnson in the crop. He contends that the tobacco was not grown on his land as stated in the mortgage, and that the mortgage states that Johnson had a 1/2 interest in 4 acres of tobacco when his actual interest was a 1/4 interest in 8 acres.

Owen, in his answer in another suit, Rutherford v. Johnson, in a justice of the peace court in Robertson county, stated on oath that he had in his possession $121.46 from the sale of Johnson's tobacco; that the tobacco was raised on a farm owned by himself and W. R. Avent; that he was notified by Corder of his mortgage; and that the mortgage was of record. He is therefore estopped to set up in this case any facts inconsistent with that statement.

"Where one states on oath, in a former litigation, either in a pleading, or in a deposition, or in oral testimony, a given fact as true, he will not be permitted to deny that fact in a subsequent litigation, although the parties may not be the same. Hamilton v. Zimmerman, 5 Sneed, 39; Cooley v. Steele, 2 Head, 605; Stillman v. Stillman, 7 Baxt. 169, 175; Stephenson v. Walker, 8 Baxt. 289; Nelson v. Claybrooke, 4 Lea, 687, 692 McEwen v. Jenks, 6 Lea, 289; Watterson & Riley v. Lyons, 9 Lea, 566; McCoy v. Pearce, I Tenn.Cas. 87." Tate v. Tate, 126 Tenn. 169,212, 148 S.W. 1042, 1053; Sartain v. Dixie Coal & Iron Co., 150 Tenn. 633, 647, 266 S.W. 313; Southern Coal & Iron Co. v. Schwoon, 145 Tenn. 191, 226, 239 S.W. 398; McLemore v. Railroad, 111...