Newton Oil & Manufacturing Company v. Carr

• Decision Date: 23 May 1910
• Citation: 52 So. 353,97 Miss. 234
• Parties: NEWTON OIL & MANUFACTURING COMPANY ET AL. v. JOSEPH C. CARR
• Court: Mississippi Supreme Court

52 So. 353

97 Miss. 234

NEWTON OIL & MANUFACTURING COMPANY ET AL. v. JOSEPH C. CARR

Supreme Court of Mississippi

May 23, 1910

March 1910

FROM the chancery court of Winston county, HON. JAMES F. MCCOOL Chancellor.

Carr appellee, was complainant in the court below; the Oil, etc company and others, appellants, were defendants there. From a decree in favor of complainant, defendants appealed to the supreme court. The facts are stated in the opinion of the court.

Decree reversed and cause remanded.

Rodgers & Brantley, for appellants.

The decree of the court below from which the appeal is prosecuted is manifestly erroneous and in so far as it adjudged the mortgage or deed of trust valid as against the creditors of the mortgagors is in the face of the decisions of this court. Harman v. Hoskins, 56 Miss. 142; Joseph v. Levy, 58 Miss. 843; Britton v. Criswell, 63 Miss. 394; Baldwin v. Little, 64 Miss. 126.

L. H. Hopkins, for appellee.

The mortgage or deed of trust was certainly valid on its face and not condemned by any decision of this court. The evidence showed that the mortgagor accounted for the proceeds of all sales made, and the decree of the chancery court should be affirmed.

OPINION

SMITH, J.

On the 4th day of June, 1908, appellant recovered a judgment against James and William Wilson, composing the firm of Wilson Bros. On the 14th day of July following said judgment was enrolled in the office of the circuit clerk, and on the next day execution was issued thereon. Under this execution the sheriff was proceeding to sell the stock of goods belonging to said Wilson Bros., when appellee filed this bill in the court below, alleging that he had a prior lien on said stock of goods under a deed of trust executed to him thereon by said Wilson Bros. on the 5th day of June, 1908, and prayed for and was granted a temporary injunction enjoining said sale. The recital in the deed of trust relative to the stock of goods is as follows: "Also the entire stock of wares and merchandise now in said stores at High Point, Miss. and of wares and merchandise to be placed in said stores during the year 1908." To this bill a demurrer was filed alleging, among other things, that said deed of trust was void for the reason that it shows on its face that it was made to hinder, delay, and defraud creditors. This demurrer being overruled, appellant filed its answer, charging that said deed of trust was fraudulent and void as to creditors,...