Life Ins. Co. of Virginia v. Page

• Decision Date: 08 March 1937
• Docket Number: 31991
• Citation: 172 So. 873,178 Miss. 287
• Court: Mississippi Supreme Court
• Parties: LIFE INS. Co. OF VIRGINIA v. PAGE et al

172 So. 873

178 Miss. 287

LIFE INS. Co. OF VIRGINIA v. PAGE et al

No. 31991

Supreme Court of Mississippi

March 8, 1937

Division A

Suggestion Of Error Overruled April 19, 1937.

APPEAL from chancery court of LeFlore county HON. R. E. JACKSON Chancellor.

Suit by the Life Insurance Company of Virginia against Jackson W Page and others, in which the United States of America and another intervened. From a decree awarding personal recovery against named defendant, but dismissing the bill as to all property involved, complainant appeals. Reversed, modified decree entered, and cause remanded.

Reversed and modified decree entered.

John W. Crisler, of Clarksdale, for appellant.

Complainant is entitled to lien on proceeds of treasury check and exemption certificates.

We say that complainant has both the statutory landlord's lien and an equitable lien upon all of this money and property. It is not necessary that a landlord shall be in the forum of a justice of the peace court in order to enforce his statutory landlord's lien. This lien may be enforced in equity. We further say that equity will follow the proceeds of the crop no matter what form they may take. This we believe is the well settled rule, and the rule appears to be universal where the tenant is shown to be insolvent.

36 C. J. 500, sec. 1478; 16 R. C. L. 880; 1916E Ann. Cas. 826; Young v. Wyatt, 197 S.W. 575; Brown's Executor v. U. S. Trust Co., 215 S.W. 815; Newman v. Bank, 66 Miss. 323, 5 So. 753; Paine v. Sykes, 72 Miss. 351, 16 So. 903.

We submit that complainant was entitled to have the income from the land subjected to the payment of its rent; that the proceeds of the treasury check and exemption certificates were in no sense a bounty since the sub-lease expressly destroyed the company's security on 270 acres of land; and that the government by its intervention is attempting to set up for defendants a right which they do not claim for themselves and which their own course of conduct shows they did not intend to invoke.

The company did not waive in favor of H. G. Kitchell.

There was no publication of an offer to the public. The Life Insurance Company of Virginia simply obligated itself to give a waiver at the proper time, as it did in favor of the Greenwood Production Credit Association. No waiver of any kind was executed in favor of H. G. Kitchell in any capacity.

At no time did Kitchell or Page or anyone else communicate to the company that Kitchell was making advances and relying upon the waiver stipulated in the lease contract, and the company had no notice or knowledge of anything of the kind until the time for settlement arrived. Then comes the claim of H. G. Kitchell, agent, for $ 1177.08.

A party has a right to know with whom he is contracting. This was not an offer made to the public where acceptance is completed by performance on the part of some member of the public. The contract nowhere contains a stipulation which can be so construed, and nothing is mentioned of any parties to the lease contract except the lessor and the lessee. The parties to a contract must be designated with certainty.

13 C. J. 262, sec. 45C; Pioneer Box Co. v. Price, 132 Miss. 189, 96 So. 103; Murphree v. Ins. Co., 168 Miss. 667, 150 So. 534.

It will be noticed also that there is no language in this lease contract which says that the company has waived in favor of any party. It is simply an agreement to waive, which the tenant might enforce at the proper time by securing a waiver in favor of the party willing to make advances.

St. Louis Brewing Assn. v. Nieder Luecke, 76 S.W. 645.

It was error to disallow complainant's claim to goods and chattels.

Section 2156 of the Code of 1930 requires that the beneficiary in a deed of trust be specifically named if the instrument is to impart notice to anyone. The beneficiary in the deed of trust was not, named at all, as the estate of V. G. Kitchell was not a person recognized by law. The name is a nullity insofar as its being a beneficiary is concerned. No person recognized by law can be said to be included in the term, "Estate of V. G. Kitchell."

30 Cyc. 1526; 13 Cyc. 538; 18 C. J. 159; Simmons v. Spratt, 20 Fla. 495; Morgan v. Hazlehurst Lodge, 53 Miss. 665.

Defendants cannot make the answer that this deed of trust was to a trustee and not to the estate of V. G. Kitchell, deceased. Section 2156 would not recognize this nor does the law aside from this statute.

Robinson v. State, 139 S.W. 978.

An executor, administrator or trustee of an estate may be estopped by his conduct from asserting a right belonging to the estate.

18 Cyc. 211K; 23 C. J. 1178, sec. 397; Pittman, Admr. v. Pittman, 59 Miss. 203; Caldwell v. Kimbrough, 91 Miss. 877, 45 So. 7.

H. C. Mounger, of Greenwood, for appellees.

We contend that the treasury check and the exemption certificates were not subject to the landlord's lien and were not the subjects of attachment under the statute.

Sections 2191 and 2186, Code of 1930.

It certainly cannot be successfully maintained that the treasury check issued by the United States and that the exemption certificates issued by the agricultural department were agricultural products. They were neither corn, cotton, wheat, oats nor other things usually raised on the land. It would be a great stretch of the imagination to hold that these were agricultural products.

The fact that the complainant went into the chancery court did not give it a lien. The chancery court can only enforce a lien that already exists.

A lien arises by contract or by implication.

37 C. J., pages 315-319.

This treasury check was levied on in the hands of the Greenwood Production Credit Company, one of the government agencies, and the exemption certificates were levied on in the hands of the county agent, one of the government agricultural employees. Neither of these officials or employees were subject to the writ, nor were the checks levied on the subject of the attachment.

The complainant has no claim to these funds. It did not contribute anything to them. These were a gift by the United States to Page, or a bonus or whatever they might be called. The United States had right to. give them to Page, as far as the complainant is concerned.

2 Hughes on Procedure, pages 1088, 1089.

The United States is not complaining.

The whole proceeding is one to enforce the landlord's lien by a proceeding in chancery. We are contending that, not having any lien under the landlord and tenants act, on the treasury check and the exemption certificates, it cannot acquire one by gong into chancery.

It has been a common practice for landlords to give a waiver in order to enable the tenant to get supplies. Otherwise the land was liable to lie out. This was done in this instance. The waiver was a general one.

Dreyfus v. W. A. Gage & Co., 84 Miss. 219, 36 So. 250; Newman v. Delta Grocery Co., 138 Miss. 683, 103 So. 373; Somerville v. Delta Grocery & Cotton Co., 159 Miss. 252, 130 So. 95.

The complainant cannot question the waiver now.

Complaint is made that Kitchell loaned the Pages money under these deeds of trust without getting an order of court. In the first place the will gives him power to do this, and in the next place, how can the complainant raise this question? It was done long before the complainant appeared on the scene, and for an estate in which the complainant had no interest. The heirs are the only ones that can complain, and we hear no complaint from them.

The chancellor adjudged that these instruments were perfectly valid, and the objection that; the word "Estate" were used in describing the beneficiary is entirely too technical, in a court of chancery. The estate was to be kept together until Kitchell should see fit to divide it.

The complainant gave the waiver and should be held to it.

Lester G. Fant, of Holly Springs, and Lester M. Sack, of Clarksdale, for appellee, United States of America.

The attachment of a creditor levied against cotton tax exemption certificates in the hands of the assistant in cotton adjustment of the Agricultural Adjustment Administration of the United States Government and held in trust by him in his official capacity and their subsequent conversion into cash by the receiver was contrary to law.

Buchanan v. Alexander, 4 How. 20; White v. Wright, 1 P.2d 668; Clark v. Board of Commissioners, 161 P. 790; Dow v. Irvin, 21 N. M. 576, 157 P. 490; Addystone Pipe & Steel Co. v. City of Chicago, 170 Ill. 580, 48 N.E. 967; In re Nagle, 135 U.S. 1; Ohio v. Thomas, 173 U.S. 276; Johnson v. Maryland, 254 U.S. 51; U. S. v. Kirby, 74 U. S. (7 Wall.), 482.

That the administration of public business should not be hampered by process against funds in the hands of government agents in the interest of private parties has also been recognized by judiciaries in many other jurisdictions.

Bank of Tennessee v. Dibrell, 3 Sneed 379; Hines v. Minor, 105 S.E. 851; Porter & Blair Hdw. Co. v. Perdue, 105 Ala. 293, 16 So. 779; Weiser v. Payne, 294 P. 407; The Principality of Monaco v. Mississippi, 292 U.S. 313; Tucker v. Pollock, 21 R. I. 317, 43 A. 368.

Benefit payments to a producer for acreage reduction under the Agricultural Adjustment Act and Cotton Control Act cannot be diverted by judicial process from the producer to the payment of his creditors.

The Agricultural Adjustment Act of May 12, 1933, Title 7, U. S Code, sections 601, 602, 608, 701; Buchanan v. Alexander, 4 How. 29; Wilson v. May, 152 So. 878; DeBaum v. Hulett Undertaking Co., 153 So. 513; Bullard v. Goodno, 50 A. 544, 73 Vt. 88; Wilson v. Sawyer, 17 Ark. 492, 6 S.W.2d 825; Manning v. Spry, 121 Ia. 191, 96 N.W. 873; Yates Co. National Bank v. Carpenter, 119 N.Y. 550, 23 N.E. 1108; City of Atlanta v. Stokes, 165 S.E. 270; ...