Packwood v. Wm. Atkinson & Foxworth Co.

• Decision Date: 10 February 1902
• Citation: 31 So. 337,79 Miss. 646
• Parties: SAMUEL E. PACKWOOD v. WILLIAM ATKINSON & FOXWORTH COMPANY
• Court: Mississippi Supreme Court

31 So. 337

79 Miss. 646

SAMUEL E. PACKWOOD v. WILLIAM ATKINSON & FOXWORTH COMPANY

Supreme Court of Mississippi

February 10, 1902

FROM the circuit court of Marion county. HON. JOHN R. ENOCHS Judge.

Packwood appellant, was plaintiff, and the Atkinson & Foxworth Company, appellees, defendant in the court below.

Action of replevin by appellant against appellees to recover one horse. On the trial in the circuit court plaintiff (appellant) offered in evidence a deed of trust given by one Welda to plaintiff on a bay mare and other property, and "any increase of property, real or personal, that may be hereafter acquired by purchase or otherwise." This deed of trust was duly acknowledged and recorded. Plaintiff offered said deed of trust as a link in his chain of title to the horse, and then offered to show that plaintiff acquired title to the horse by virtue of the provisions of the deed of trust, and by virtue of said horse being a colt of the mare acknowledged to be included in the deed of trust, and that the colt was born during the time the deed of trust was in force, and that the deed of trust was foreclosed according to its terms at a public sale, and that plaintiff purchased the horse at that sale, and the debt secured by the deed of trust was credited with the price. Plaintiff then offered to show that the defendant had actual knowledge of plaintiff's lien on the horse. Defendant objected to the introduction of the deed of trust: (1) Because it is void as to defendant who is a third party; (2) because plaintiff has no right to property that is not embraced in the deed of trust. The court sustained defendant's objections to all this testimony and plaintiff excepted. There was judgment for defendant from which the plaintiff appealed.

Reversed and remanded.

Mounger & Mounger, for appellants.

One question presented by this record is: Does a deed of trust which conveys and incumbers the dam incumber also her natural increase as against a subsequent lienor, who takes his lien with actual notice of the former lien and is not a purchaser for value, in that he takes his lien merely to secure an already existing indebtedness? Another question presented is whether the provision in the deed of trust, offered in evidence, providing for the conveyance to the trustee of all the property, real or personal, to be afterwards acquired by Welda is void for indefiniteness, and to appellee who took the deed of trust under which they claimed with actual notice of appellant's claim and took it to secure an antecedent debt? As to the first proposition, that is, for authority that the first deed of trust would prevail, even though it had not contained the provision referred to, we rely upon the following authorities: Maize v. Bowman, 17 L. R. A., 81, and the note there given. See especially the subtitle in the note on page 82: "As between mortgagee of dam and other claimants." Note specially the following passage: "The offsprings of mortgaged animals born after the execution of the mortgage are subject to the lien thereof." Dyer v. State, 88 Ala. 225; Foreman v. Proctor, 9 B. Mon., 724; Hughes v. Graves, 1 Litt., 317; see also 85 Ala. 417; 10 Am. & Eng. Ency. Law (1st ed.), 360, note 4; 16 Am. & Eng. Ency. Law (2d ed.), 348 et seq. A mortgage of domestic animals covers their increase, although it is silent as to their increase. Bank v. Freeman, 171 U.S. 620 to 621; 43 Lawyers Co. Ed., 308.

As to the second proposition, that is, as to whether the clause in the deed of trust purporting to convey all property to be afterwards acquired is valid as to appellees, there is no reason that we have seen why a third party with notice, and who has parted with nothing, should be in any better position than a party to the deed of trust would be in. That this provision is valid between the parties there can be no question. White v. Thomas, 52 Miss. 49; Williams v. Crook, 63 Miss. 9. The court below thought that this last case was authority for the position that this kind of a provision in a deed of trust is absolutely void as to third parties, whether with or without notice. We do not think so. Our supreme court has never so held, and we can see no reason why it should. See also Bank v. Freeman, 171 U.S. 620, as to this proposition.

Weathersby & Mayson, for appellee.

The provision in the deed of trust that all increase of property real or personal, acquired by purchase or otherwise, is void, and appellant cannot recover under that. Williams v. Crook, 63 Miss. 9. If appellant can recover at all, it must be under the common law rule that the brood follows the dam; but appellant cannot recover under that. It will, therefore, be necessary to notice the kind, character and extent of the estate vested in the mortgagee under the laws of this state. The common law doctrine, that the mortgagee acquires and holds the legal estate at law, while the estate of the mortgagor, his equity of redemption only remains in him, has been abrogated in this state by statute. Section 2449 of the code of 1892 provides that before sale under a mortgage or deed of trust, the mortgagor or grantor shall be deemed the owner of the legal title of the property conveyed in such mortgage or deed of trust until after a breach of the condition in such mortgage or deed of trust. This being true, the mortgagor only has a lien upon the property in esse at the time of the execution of the mortgage; the lien does not extend to the subsequently begotten increase, hence appellant has no lien upon the horse in question, and must fail. The supreme court of California in construing a statute identical with ours said: "Prior to 1873 the giving of a cattle mortgage in this state vested in the mortgagee the title to the property mortgaged (Heyland v. Badger, 35 Cal. 404, and cases there cited), and while this rule prevailed the foregoing decisions would have been applicable. The civil code, however, went into effect at the beginning of that year, and under its provisions the mortgagor is not, by the execution of the chattel mortgage, divested of his title to the property, but still remains its owner, while the mortgagee has only a lien thereon. Civ. Code, § 2888...