Jones v. Hyman Mercantile Co

• Decision Date: 28 January 1924
• Docket Number: 23480
• Citation: 134 Miss. 275,98 So. 845
• Court: Mississippi Supreme Court
• Parties: JONES et al. v. HYMAN MERCANTILE CO

98 So. 845

134 Miss. 275

JONES et al. v. HYMAN MERCANTILE CO

No. 23480

Supreme Court of Mississippi

January 28, 1924

Division B

Suggestion of Error Overruled Feb. 25, 1924.

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

Suit by the Hyman Mercantile Company against P. I. Jones and others. From a decree for plaintiff defendants appeal. Affirmed in part, and reversed and bill dismissed in part.

Decree affirmed in part, and reversed in part.

Theo. McKnight, for appellants.

The bill alleges that the fixing of October 1, 1917, as the date of the maturity of the deed of trust was done by "inadvertence and mistake" and that same should have read "October 1, of each year;" and 'that said deed of trust was intended to be a continuing deed of trust and security from year to year as long as the parties thereto should see fit to do business thereunder."

The effort here made by appellee is to enforce this deed of trust without reformation, and to have it construed as a perpetual security on the land therein described. It is apparent of record that the debt, for 1917, for the security of which the deed of trust of January 20, 1917, was given, has been paid.

To include in the foreclosure of this deed of trust an indebtedness of six hundred fifty-five dollars and forty cents for the year 1920, (for which year there was not even a deed of trust upon the crop) would be to go beyond the most extreme construction of the language of the instrument, and in effect, would be to hold that said instrument was perpetual in its operation, which would, in turn, condemn the instrument as a fraud upon its face, and void as against public policy, as being a secret lien.

W. A. Parsons, for appellees.

There are no creditors or third parties involved. It seems to be argued that because the deed of trust sued on provides that "if the said parties of the first part shall, on or before October 1, 1917, pay what may be due . . . then this deed of trust to be void, but if default is made in the said payments, or any part thereof, then all of the indebtedness secured by this deed of trust shall become due and owing at any time after such default at the option of the party of the third part, or the legal holder, or holders of the said indebtedness, whether it would otherwise be so or not," that it has no application here.

But the evidence submitted, and the circumstances of the transaction, and the rest of the deed of trust, show beyond any question that it was the intention of the parties to the deed of trust that it should stand as security for the advances made under it, not only for the year 1917, but for the years 1918, 1919 and 1920 as well.

We do not think that this clause is reasonably susceptible of the construction placed upon it by the appellant, and certainly not when taken in connection with the balance of the instrument, and the situation and surroundings of the parties, and the construction they placed upon the instrument in conducting the business in connection with which the instrument was executed.

For the well-known rules that should guide in the construction of every written instrument, see: 15 A. and E. Ency. of Law (1 Ed.), page 777; Jones v. Mississippi Farm Company, 116 Miss. 295, 76 So. 880; Harris v. Townsend, 101 Miss. 590, 58 So. 529; Yazoo & Mississippi Valley R. R. Co. v. First National Bank of Vicksburg, 119 Miss. 59, 80 So. 382; Rankin County v. Busick, 22 So. 801; Heard v. Garrett, 34 Miss. 152; Turner v. Acker, 2 Miss. Decisions 736; Dardie Tynes Foundry and Machine Co. v. Glen Allen Oil Mill, 84 Miss. 259, 36 So. 262; Jones on Mortgages, (7 Ed.), pars. 70, 101, 367, 367a.

Appellant says that the decree of the lower court makes the deed of trust perpetual and it would be void. I do not know of any principle of law which would make a mortgage to secure the advances made during the continuance of a certain business void and certainly not as between the parties to the deed of trust. The decree of the lower court only went to the extent that the deed of trust was given to secure the payment of the account sued on for the years 1917, 1918, 1919 and 1920, and we do not see how the lower court could have found otherwise under the evidence offered.

It is established as the law of the state of Mississippi that the sale of property on a credit with retention of the title in the seller until the payment of the purchase price, creates an indebtedness with an equitable lien upon the property to secure the payment of that indebtedness. Foundry Co. v. Pascagoula Ice Company, 72 Miss. 615; Duke v. Shackelford, 56 Miss. 552; Burnley v. Tuft, 66 Miss. 48; Dederick v. Wolfe, 68 Miss. 500; McPherson v. Lumber Company, 70 Miss. 649; Tuft v. Stone, 70 Miss. 54.

Being but a security for the payment of money the benefit thereof follows the debt when assigned as an incident thereof. Kausler v. Ford, 47 Miss. 289; Kerr v. Moore, 54 Miss. 286; Taylor v. Nelson, 54 Miss. 524; Foundry v. Pascagoula Ice Company, 72 Miss. 615.

Theo McKnight, for appellants in reply.

Appellee seeks, by parol testimony and allegations in its bill, to extend the operation of the deed of trust of 1917 beyond its express and unambiguous terms. This it cannot do. O'Neal v. McLeod 28 So. 23, not officially reported; Jordan v. Neal, 33 So. 17; Columbia Star Milling Company v. Russell & Company, 89 Miss. 437, 42 So. 233.

Argued orally by Theo. McKnight, for appellants, and W. A. Parsons, for appellee.

OPINION

COOK, J.

The appellee, Hyman Mercantile Company, filed its bill in the chancery court of Franklin county against the appellants seeking thereby to secure a personal decree against the appellants for a balance claimed to be due for goods, wares, and merchandise sold to them during the years 1917, 1918, 1919, and 1920, and for the satisfaction of such decree, to enforce the lien of a certain deed of trust executed by appellants in favor of appellee on January 20, 1917, and also certain vendor's liens reserved in contracts for the conditional sale of certain personal property purchased from appellee by P. I. Jones, one of the appellees. The chancellor entered a decree adjudging that appellants were indebted to appellee in the sum of one thousand and seventy-three dollars and seventy-one cents, and that by virtue of said deed of trust the appellee had a lien on...