Mixon v. Green

• Decision Date: 15 January 1940
• Docket Number: 33909
• Court: Mississippi Supreme Court
• Parties: MIXON et al. v. GREEN

193 So. 8

187 Miss. 343

MIXON et al. v. GREEN

No. 33909

Supreme Court of Mississippi, Division A

January 15, 1940

Suggestion Of Error Overruled February 12, 1940.

APPEAL from circuit court of Perry county HON.W. J. PACK, Judge.

Replevin action by B. E. Green against G. F. Mixon and others, to recover tung oil nuts. From a judgment for plaintiff defendants appeal. Affirmed.

Affirmed.

H. D Young, of New Augusta, and R. E. Spivey, Jr., of New Orleans La., for appellants.

A deed of trust conveying "all crops of cotton, corn, truck and other agricultural products growing to to be grown by grantor and by anyone for him, or in which he may have any interest, and produced during the year 1938 and particularly upon that tract of land in Greene County, Mississippi, described generally as: The farm, containing 65 acres, owned by B. E. Green and cultivated during said year by grantor". . . . "Intending to convey, and hereby conveying, all property of like kind or class as that hereinabove described, located on or used in connection with the aforesaid land, whether specifically described or not, and also all increase thereof and additions thereto within twelve months from the date hereof, " conveys the tung oil nuts grown on the described land during the year 1938.

Tung oil nuts are crops of agricultural products.

2 C. J. 988, Sec. 1; 3 C. J. S. 361; Northern Cedar Co. v. French, 230 P. 837, 131 Wash. 394, 3 Words & Phrases, 381; Webster's New International Dictionary, (2 Ed.); Wood v. Pace et al., 164 Miss. 187, 143 So. 471; Summerlin v. Orange Shores, Inc., (Fla.), 122 So. 508; Haines City Citrus Growers Assn. v. Petteway (Fla.), 145 So. 183.

Title to crops is in tenant.

Alexander v. Zeigler, 84 Miss. 560, 36 So. 536; Opperman v. Littlejohn, 98 Miss. 636, 54 So. 77; Wood v. Pace, 164 Miss. 187, 143 So. 471; Williams v. Sykes, 170 Miss. 88, 154 So. 267.

Landlord cannot reserve title to part of crops as rent by special agreement.

16 R. C. L. 980, 981, Secs. 493, 494; 36, C. J. 388, Sec. 1275 (7); 36 C. J. 684, Note 87(c).

Contract between landlord and tenant is not a sale of the tung oil nuts.

Opperman v. Littlejohn, 54 So. 77; Sec. 3347, Code of 1930; 24 R. C. L. 49, Sec. 312; 12 R. C. L. 551, Sec. 76; Johnson v. Dick, 27 Miss. 277.

As to subordination and non-disturbance agreement, execution thereof by landlord makes his interest or right in, or lien on, tung oil nuts inferior and subordinate to deed of trust executed by tenant conveying all crops. The written contract controls.

Red Snapper Sauce Co. v. Bolling, 95 Miss. 752, 50 So. 401; McInnis v. Manning, 131 Miss. 119, 95 So. 250; Dowling v. Smyley, 116 So. 294.

Oral evidence is inadmissible to alter, vary, or contradict terms of written agreement.

Davis v. Butler, 128 Miss. 847, 91 So. 279; Kendrick v. Robertson, 145 Miss. 585, 111 So. 99; Edrington v. Stephens, 148 Miss. 583, 114 So. 387; Stone v. Grenada Grocery Co., 180 Miss. 566, 178 So. 107; Sutton et al. v. Cannon, 135 Miss. 368, 100 So. 24.

Reservation by parol is inadmissible.

Campe v. Renandine, 64 Miss. 441, 1 So. 498.

Legal effect of written instrument cannot be contradicted, altered, or changed by parol evidence of prior agreements.

Thompson v. Hill, 147 Miss. 489, 112 So. 697.

Superior equity is in appellant.

Union Indemnity Co. v. Shirley, 170 Miss. 594, 150 So. 825; Coffey v. Land, 176. Miss. 114, 167 So. 49; Butler Merc. Co. v. Cruise, 175 Miss. 200, 166 So. 325.

Dale & Koonce, of Hattiesburg, for appellee.

The waiver is not sufficiently certain to estop appellee.

Thomas v. First National Bank, 101 Miss. 500, 58 So. 478; 10 R. C. L. 695, Sec. 23; 21 C. J. 1090, Sec. 69; 21 C. J. 1102, Sec. 97; 19 Am. Jur. 625, Sec. 27.

Appellants were not misled by the waiver.

Hartsell v. Myers, 57 Miss. 35; I. C. Ry. Co. v. Hardee, 83 Miss. 560, 35 So. 764; Williams v. Hardee, 140 Miss. 155, 106 So. 17.

The tung nut crop having been, by agreement between appellee and the Association, omitted from the deed of trust, no judicial construction or interpretation of the term "agricultural products can be availed of by appellants; and the various authorities of that character cited by appellants in their brief are of no effect.

And we submit that, had the waiver as prepared by the Association informed appellee that all agricultural crops with which Dallas was to have to do during the year 1938 were included in Dallas' deed of trust, and had not appellee informed the Association that the nut crop was to belong to him, appellants would not be able to claim that the crop of tung nuts in question was included in the Association's deed of trust from Dallas. With us, agricultural products mean, by reason of our restricted farming, only the crops which we plant and grow and harvest in one and the same year; and Dallas informed the Association's employee who prepared his deed of trust that his crops were to be corn, cotton, peas, etc., which he was to plant that year; and the Association's manager and other employees, independently of what Dallas so told them, had but to use their common reason and ordinary "horse sense" to know that the nut crop was not to be Dallas' and that it was not the intention of Dallas to give a deed of trust on that crop or of appellee to waive his rights with reference to that crop. The tung trees, 65 acres in all, were 4 and 5 years old at that time. They had been planted by appellee, and by him and at his expense had been cultivated and cared for during the time when they did not bear and were a dead expense. He had devoted his land to them, and they were part an parcel of the land itself. Only he had taken the risk during those growing years of having them destroyed by a plant disease or otherwise and of losing his investment, and he had done so for one reason, and the only, which was that he might ultimately harvest nuts from them for the market. Dallas had never sustained one cent of expense in connection with them during those years and had had no risk whatsoever with them. He was merely a negro renter for the one year 1938. The Association's manager and other employees are practical men and are acquainted with our South Mississippi farming; and all of these things they knew or had but to use their common sense to know; and they knew, therefore, without being expressly informed by appellee, and especially after having interrogated Dallas, that appellee had gone to that great expense and trouble and undergone the years of risk with reference to the tung trees only, when they were beginning to bear, to give them and the land over to a negro tenant of that one year, absolutely rent free, to cultivate and to have all of the ordinary annual crops that he might make and in addition the crop of tung nuts which the trees should grow that year.

The Association and its employees, who are appellants here, were not in the slightest misled by the waiver as so prepared by the...