Hawkins v. Nash

• Decision Date: 28 March 1932
• Docket Number: 29792
• Citation: 163 Miss. 500,140 So. 522
• Court: Mississippi Supreme Court
• Parties: HAWKINS v. NASH et al

140 So. 522

163 Miss. 500

HAWKINS v. NASH et al

No. 29792

Supreme Court of Mississippi

March 28, 1932

Division B

Suggestion Of Error Overruled, May 9, 1932.

APPEAL from chancery court of Clay county, HON. J. A. FINLEY Chancellor.

Suit by F. G. Hawkins, as trustee in a deed of trust to the Bank of West Point, against Nat Nash, F. M. Crump & Co., and another in which an injunction bond was given and a writ of injunction issued, defendants Crump & Co. and another moved to dissolve the injunction, and crass-bills were filed. From a decree dissolving the injunction, dismissing the bill and awarding defendants damages on the bond complainant appeals. Affirmed.

Affirmed.

Frank A. Critz, and B. H. Loving, both of West Point, for appellant.

A waiver will not be implied from slight circumstances but must be evidenced by an unequivocal and decisive act clearly proven. If the act is not of such a character or is not inconsistent with the enforcement of the rights claimed to have been waived, or an intention to rely upon it, no waiver is established; or if, notwithstanding an apparent waiver, there is an expressed reservation of one's legal rights there is no waiver.

29 Am. & Eng. Ency. of Law, page 1105; 27 R. C. L. 908, sec. 5.

In accordance with the general law as to the burden of proof it devolves upon the party claiming the waiver to prove the facts on which he relies for such waiver.

27 R. C. L., page 510, section 6.

There are no facts here by express agreement, or by any proven custom, or by any established custom of the Bank of West Point, which would estop it from protecting its vested rights under said deed of trust.

Campbell v. Farmers Bank of Boyle, 127 Miss. 668, 90 So. 436; Marine Bank & Trust Co. v. Greenville Savings Banks & Trust Co., 97 So. 526.

It is a well-settled rule that the representation or act relied on to constitute an estoppel must be certain to every intent and is not to be sustained by argument or inference; it must be clearly inconsistent with the evidence which is proposed to be given or the right or title to be set up by the party to be estopped.

11 Am. & Eng. Ency. of Law, pages 388, 424; Roach v. Brannon, 57 Miss. 490.

Estoppel must arise from some word spoken, act done, or failure to speak when called on to speak, and it cannot depend upon an "intention" or "expectation."

Canal-Commercial Trust, etc. Bank v. Brewer, 143 Miss. 146, 108 So. 424.

A waiver, strictly so called, is the result of an intentional relinquishment of a known right.

29 Am. & Eng. Enc. of Law, page 1091.

McClellan & Tabb, of West Point, for appellees.

Not only would the appellant have ratified the sale of the cotton by Nash had he accounted to it for the proceeds thereof, but it expected and therefore authorized him to sell the cotton and to account to it for the proceeds thereof, and with this complaint the purchaser of the cotton has no concern. He received the cotton because of the bank's consent to its sale, free from the lien of the bank's deed of trust.

Tonnar v. Washington & Issaquena Bank, 105 So. 750.

A mortgagee can by custom, acts, or dealings waive its lien on mortgaged property, especially cotton, in favor of one who purchases.

Phillips v. Thomas, 128 Miss. 729, 91 So. 420; Judd v. Delta Grocery & Cotton Company, 133 Miss. 866, 98 So. 243; McGee et al. v. Carver, 141 Miss. 463, 106 So. 760; Williams v. Delta Grocery and Cotton Co., 132 So. 732.

OPINION

Anderson, J.

Appellant, as trustee in a deed of trust in favor of the Bank of West Point, filed his bill against appellees in the chancery court of Clay county praying an injunction against appellees from disposing of or removing three bales of cotton, and from disposing of the warehouse receipts therefor. On the fiat of the chancellor an injunction bond was given, and a writ of injunction issued and served on the appellees. On motion of appellees F. M. Crump & Co. and Federal Compress & Warehouse Company, the injunction was dissolved. The cause was tried on motion to dissolve, on original bill, answers, cross-bills, answers thereto, and proofs. The decree dissolving the injunction dismissed the bill and awarded appellees damages on the injunction bond. From that decree appellant prosecutes this appeal.

Appellee Nat Nash was a tenant on the farm of A. B. Norris. He gave a deed of trust to the Bank of West Point to secure an indebtedness to the bank of between three hundred dollars and four hundred dollars. By the deed of trust he conveyed certain personal property, and in addition the agricultural products to be grown by him on Norris' farm during the year 1928. Appellant was named as trustee in the deed of trust. Appellee Nat Nash sold three bales of the cotton produced by him, which was covered by the deed of trust, to appellees F. M. Crump & Co. Before selling the cotton he had it deposited in warehouses at West Point and Aberdeen and held warehouse receipts therefor. Appellees F. M. Crump & Co. bought the cotton and paid appellee Nash for it and took up from him the warehouse receipts. At the time appellees F. M. Crump & Co. purchased the cotton and paid appellee Nash for it, they had no actual knowledge of the existence of the deed of trust in favor of the Bank of West Point. However, the deed of trust was on record, and they were affected with constructive notice thereof.

Appellant's contention is that appellees. F. M. Crump & Co. bought the three bales of cotton subject to the deed of trust of the Bank of West Point, and they...