Garmon v. Fitzgerald

• Court: Mississippi Supreme Court
• Writing for the Court: McGowen, J.
• Citation: Garmon v. Fitzgerald, 168 Miss. 532, 151 So. 726 (Miss. 1934)
• Decision Date: 01 January 1934
• Docket Number: 30209
• Parties: GARMON v. FITZGERALD

151 So. 726

168 Miss. 532

GARMON v. FITZGERALD

No. 30209

Supreme Court of Mississippi

January 1, 1934

Division A

1. CHATTEL MORTGAGES. Description of property in deed of trust held insufficiently definite to warrant maintenance of replevin action.

Description of property in deed of trust was in this manner: "Two Underwood Typewriters; three chairs; one steel filing cabinet;... five gross half pint bottles," with further statement that certain property was conveyed to trustee after acknowledging a mortgage given to bank, "to-wit one National Cash Register, etc.," with the same sentence occurring with reference to other secured claims and describing scores of articles in such manner.

2. CHATTEL MORTGAGES.

Description of property in deed of trust must be sufficient to separate and distinguish property from any other of like kind.

3. CHATTEL MORTGAGES.

As respects sufficiency of description, oral evidence was not competent to identify property insufficiently described in deed of trust because acknowledging prior outstanding trust deed, where instrument was not made part of contract and it appeared there were other trust deeds in favor of same party.

4 CONTRACTS.

Purchaser of property was not estopped to deny title as against creditors of seller whose debt he had agreed to pay; such creditors merely having right to bring action at law in assumpsit for debt.

5 ESTOPPEL.

"Estoppel" operates only in favor of one who, induced by acts or representations of another, so changes his situation that injury would result if truth were known.

6. CONTRACTS. Purchaser of property was not estopped to assert title thereto as against creditors of seller on account of agreement to pay debt.

Arrangement whereby property was purchased pursuant to agreement that purchaser would assist debtor in securing loan from bank and that bank would foreclose mortgage and the property should be purchased did not result in estoppel as to other creditors whose debts purchaser agreed to pay, in that it did not in the slightest degree change creditors' position to their injury.

7. REPLEVIN.

Action of replevin is ex delicto and not ex contractu.

8. REPLEVIN.

Plaintiff in replevin has burden of showing his right to immediate possession of identical property described in affidavit and declaration.

HON. WM. A. ALCORN, JR., Judge.

APPEAL from circuit court of Coahoma county HON. WM. A. ALCORN, JR., Judge.

Action in replevin by W. H. Fitzgerald, Jr., trustee, against John W. Garmon. Judgment for plaintiff, and defendant appeals. Reversed and rendered.

Reversed, and judgment for appellant.

Roberson & Cook, of Clarksdale, for appellant.

A replevin suit cannot be used to set aside a conveyance. A replevin suit is an action ex delicto and not ex contractu.

Quarles v. Hucherson, 104 So. 148.

The plaintiff in a replevin suit has the burden to show his right to immediate possession of the property, the action being of possessory character.

Scarborough v. Lucas, 119 Miss. 128, 80 So. 521.

In replevin, the plaintiff has the burden of showing right of possession to the identical property in controversy.

Brunson v. Volunteer Carriage Co., 93 Miss. 793, 47 So. 377; Johnson v. Sanders, 114 So. 334; Scarborough v. Lucas, 119 Miss. 128, 80 So. 521; Leffel v. Miller, 7 So. 324; Allen v. Dicken, 63 Miss. 91; Kelly v. Reid, 57 Miss. 89; Bowers v. Andrews, 52 Miss. 596; Nicholson v. Karpe, 58 Miss. 34; Pearce v. Perkins, 70 Miss. 282, 12 So. 205; Jackson et al. v. General Motors Acceptance Corporation, 119 So. 808; D. Appleton & Co. v. Barnes, 117 So. 376.

Maynard, Fitzgerald & Venable, of Clarksdale, for appellee.

It is now too well settled for disputation that where a description of personal property is imperfect but is sufficient to point inquiry, which if pursued, will locate with certainty the property, a conveyance is not void.

McManus v. Wilson, 138 Miss. 1.

Reference to other instruments will supply adequacy of description.

Leake v. Caffey, 19 So. 716; Thrasher v. Royster, 137 Ala. 350, 65 So. 796; Noonan v. Braley (U. S.), 2 Black 499, 17 L.Ed. 278.

There is another reason why the defendant cannot attack in any wise the invalidity of the instrument. It was a fact, and the jury found as true, that Mr. Garmon undertook to pay off and discharge the indebtedness to Mrs. Miller and Mrs. Martin as a secured claim.

On the strength of this agreement which was executed he bought in the property and gained by it. He is now estopped to take any position antagonistic to his agreement.

Barnes v. Jones, 111 Miss. 337; Canada v. Yazoo & Miss. Valley R. R. Co., 101 Miss. 274; Hanson v. Davis, 132 Miss. 81; Y. & M. V. R. R. v. Sideboard, 161 Miss. 4, 133 So. 669; Hickory Investment Co. v. Wright Lumber Co., 152 Miss. 825; Delta Lbr. Co. v. Wall, 119, Miss. 350; Kelley v. Skates, 117 Miss. 886.

If one can be estopped to question the validity of a foreclosure sale he would certainly be estopped by the same facts to question the validity of the processes or instruments upon which the foreclosure was founded. But coming to cases more nearly similar to the case at bar.

A grantee who assumes the payment of a mortgage is estopped to allege a misdescription of the property therein.

Reives v. Vincke, 1 McCrary 213, 20 Fed. cases, No. 11,663; Figart v. Haldeman, 75 Ind. 564; Daub v. Engleback, 109 Ill. 267.

It has been held by this court that the substitution of a trustee in a chattel deed of trust did not have to be recorded.

Stringer v. Price, 143 Miss. 189; Quarles v. Hucherson, 139 Miss. 356; Anding v. Davis, 38 Miss. 574; 26 R. C. L., sec. 30; Chiniquy v. Catholic Bishop, 41 Ill. 148; Stephens v. Moll, 81 Tex. 115, 16 S.W. 731.

We heretofore cited cases showing that the appellant is estopped to deny the validity of the deed of trust and foreclosure. On this particular point, applying the same principal it has been held, that a grantee who assumes the payment of a secured indebtedness cannot set up a defect in an acknowledgment.

Greither v. Alexander, 15 Iowa 470; Miller v. Thompson, 34 Mich. 10; Hartz v. Emery, 184 Ill. 560, 56 N.E. 865.

Argued orally by W. W. Venable, for appellee.

OPINION

McGowen, J.

This is a unique and unusual action of replevin instituted in the circuit court of Coahoma county by W. H. Fitzgerald, Jr., as trustee, against John W. Garmon, for the possession of certain personal property. The facts necessary to state are these:

J. A. Martin undertook to organize and procure the incorporation of the Martin Pure Milk Company, having a place of business at Clarksdale. He bought and sold milk and cream. This company purchased various machines and implements used in the business, and at the time of the inception of the transaction here involved Martin and the Martin Pure Milk Company were insolvent. He owed ten or twelve thousand dollars in secured debts, and as much in unsecured debts. The company owed money to the Planters' National Bank of Clarksdale, which was secured by a trust deed in favor of said bank on all the appliances and fixtures used in that business and enumerated in the deed of trust. There was a clause therein by which the parties contracted that any future or other indebtedness between the milk company and the bank was thereby secured. The milk company also owed the National Cash Register Company, which had retained the title to, or a mortgage on, the property sold by it; the same was true as to Bessire & Co., Remington Rand Business Service, Reed & Duecker, Inc. and De Laval Separator Company.

On or about April 4, 1928, Martin executed notes and a deed of trust in favor of Mrs. Cora B. Martin, his stepmother, for one thousand seven hundred dollars, and Mrs. E. B. Miller his mother-in-law, for one thousand one hundred fifty dollars, but the deed of trust and the notes were not acknowledged until September, and up to the time of the trial remained in the possession of the debtor Martin. At this time the milk company owed the Planters' National Bank, as evidenced by two deeds of trust then in existence and uncanceled, about nine hundred dollars. The milk company owed Garmon about two thousand dollars. Martin was in distress financially, he could not borrow money, and the several lien creditors were threatening foreclosure. There was about ten thousand dollars due to secured creditors; at that time Garmon was an unsecured creditor. In this situation Garmon and Martin entered into an arrangement by which Garmon was to use his good offices in aiding Martin to secure a further loan of two thousand dollars from the bank for a short time. This money was to be paid by Martin to Garmon; default was to be made in the payment of the note to the bank; Martin was to allow the bank to foreclose; and Garmon was to buy the property at the foreclosure sale. It was further agreed between Garmon and Martin that the former would pay and discharge the indebtedness owed to the named secured creditors, including Mrs. Martin and Mrs. Miller. Thereafter Martin was to run the milk business for Garmon on a salary; they were to share in profits and losses; and, in case the property was sold, Garmon was to be reimbursed. Subsequently the money was borrowed from the bank, default was made in the payment of the two thousand dollars to the bank, and at the sale Garmon became the purchaser for the amount of the bank's debt, which was about three thousand five hundred dollars at that time, and in the bill of sale executed by the trustee Garmon assumed the five or six thousand dollar secured debts of the milk company, but this instrument did not include the Martin and Miller indebtedness. After the sale, Garmon went into possession of all the personal property here involved, and Martin continued to manage...