Planters' Lumber Co. v. Griffin Chapel M. E. Church

• Decision Date: 11 November 1929
• Citation: 124 So. 479,157 Miss. 714
• Parties: PLANTERS' LUMBER CO. v. GRIFFIN CHAPEL M. E. CHURCH et al
• Court: Mississippi Supreme Court

124 So. 479

157 Miss. 714

PLANTERS' LUMBER CO. v. GRIFFIN CHAPEL M. E. CHURCH et al

Supreme Court of Mississippi

November 11, 1929

Division B

Suggestion of Error Overruled Nov. 25, 1929.

CERTIORARI. All facts essential to establish right of applicant to writ of certiorari must be shown in application.

Where application is made for writ of certiorari, all the facts essential to establish the right of applicant thereto must be shown, and an order therefor can no more be made where part of essential facts must be supplied by mere inferences which do not necessarily follow from the other facts stated than can any other order be made by court on that kind of an insufficient foundation.

Action between the Planters' Lumber Company and Griffin Chapel M. E. Church and others. On motion for writ of certiorari. Motion overruled.

APPEAL from chancery court of Oktibbeha county.

Action between the Planters' Lumber Company and Griffin Chapel M. E. Church and others. On motion for a writ of certiorari. Motion overruled.

(Division B. May 5, 1930.)

[128 So. 76. No. 28506.]

On the Merits.

1 MORTGAGES. Covenant, in trust bond and mortgage, against alienation of mortgagor's church property covered only voluntary alienation.

The trust bond and mortgage provided in part that if church should cease to be connected with M. E. church, or corporate existence of church should cease, or its church property be alienated, then money advanced to aid church in constructing church building should become due and payable.

2 MORTGAGES.

Where debt under mortgage became due only on voluntary alienation, property could be subjected to debts until then, as if no mortgage existed.

3. MORTGAGES. Materialman held estopped by silence from claiming priority of lien for extras over lien of mortgage of bank lending money with understanding it would have first lien (Hemingway's Code 1927, section 2580).

The evidence showed that the bank was one of main sources from which church was to get money to pay for construction of building, and that materialmen knew that and was urging bank to make loan, knowing that bank was not willing to make loan unless it was secured by first lien. The bank had no notice that building contract provided, under certain contingencies, for extras above contract price, and materialmen and contractor informed bank that $ 12,000 was contract price for building and said nothing about extras. The entire five thousand dollars lent by bank to church was paid to materialman on building contract. Laws 1926, chapter 150, section 1 (Hemingway's Code 1927, section 2580), relates to mechanics' liens.

APPEAL from chancery court of Oktibbeha county.

HON. CHAS. S. MITCHELL, Chancellor.

Suit by the Planters' Lumber Company against the Griffin Chapel Methodist Episcopal Church and others. From the decree, complainant appeals. Affirmed in part, reversed in part, and cause remanded.

See, also, 124 So. 479.

Motion overruled. Suggestion of error overruled. Affirmed in part, reversed in part, and cause remanded.

Butler & Snow, of Jackson, for appellant.

The so-called trust bond and mortgage is void because it is not the act of the church, the corporation.

The general rule as to the mode of execution and formalities required in the case of absolute conveyance of land are applicable to mortgages.

41 C. J. 416; 7 R. C. L., p. 579.

Appellant seriously insists that this instrument is not a valid mortgage of the church, the corporation, and its recordation is not notice of its existence.

Marks v. Jordan, 84 Miss. 334; Section 2766, Code 1906; Hemingway's Code 1927, sec. 2425; Wheelock v. Molten et al., 15 Vermont 519; Hutchinson v. Barre Water Company, 74 Vermont 36; Eagle Woolen Mills v. Monteith, 2 Ore. 278; Isham, Admr. v. Bennington Iron Co., 19 Vermont 230.

The acknowledgment does not purport to be acknowledgment by the corporation. It was wholly insufficient to entitle the instrument to be recorded.

1 C. J. 849.

A defectively acknowledged deed thus recorded is not notice.

Walton v. Tuster, 49 Miss. 569; Ligon v. Barton, 88 Miss. 135; Turner v. Brown, 98 Miss. 378.

Appellant is not estopped to assert the priority of its lien by reason of the fact that it received with knowledge of its source, the two thousand dollars advanced by the extension board to the church under the so-called trust bond and mortgage. Because the extension board does not plead the estoppel.

It is elemental that title by estoppel cannot be availed of, unless it is plead.

The lien of the Planters' Lumber Company on the lot and building is superior to the deed of trust executed by the trustees of the church to Walter Page, trustee for the Peoples Saving Bank.

Will E. Ward, of Starkville, for appellees.

A mortgage may be, and usually is given as security for the repayment of money. But a valid mortgage may be given to secure the performance of any act. For instance, it may be given by way of indemnity, as to secure a surety from liability.

Simmons Hardware Co. v. Thomas, 147 Ind. 313, 46 N.E. 645; Harlan County v. Whitney, 65 Neb. 105, 90 N.W. 993, 101 Am. St. Rep. 610; Stevens v. Philbrick, 98 N.H. 317, 36 A. 16.

It is difficult to see why the conditions secured by the mortgage now under consideration, viz.: that the mortgaged property shall continue to be used as church property, might not with equal reason be sustained.

It is difficult to conceive how the extension board could have used language more clearly expressing the intent and more conclusively causing it to appear that Griffin Chapel could not, by any act whatever, alienate this property or create a claim thereto in any person whatever, adverse to the mortgage. By this language, the premises were clearly restricted, for all time to come, to use as a Methodist Church.

Magruder, Walker & Magruder, of Starkville, for appellees.

The court's decree on the controverted question of fact as to whether the bank did or did not know of such claim for extras at the time of its loan was for the bank, and settles such issue, under the statute.

The Peoples Savings Bank had no statutory notice of appellant's alleged lien either by suit to enforce the same or by record of the contract in the chancery clerk's office.

In any event, appellant is estopped to claim against the bank any indebtedness in excess of the twelve thousand dollars paid in full.

Only one kind of estoppel need really be considered in its application to the facts in this case: that is, estoppel by conduct. But to regard appellant's contention in the light in which he seeks to have it regarded, he is none the less restrained through the application of a second kind or class of estoppel, to-wit, estoppel by silence.

21 C. J. 1061.

Sivley v. Williamson, 72 So. 1008, 112 Miss. 276; Fredrick v. Mayers, 43 So. 677, 89 Miss. 127; Irvin v. Irvin, 93 So. 517, 207 Ala. 493; Richardson v. Toliver, 16 So. 213, 71 Miss. 966; Levy v. Gray, 56 Miss. 318; Knowles Dry Goods Co. v. Gunter, 85 So. 735, 204 Ala. 411.

OPINION

ON APPLICATION FOR WRIT OF CERTIORARI.

Griffith, J. Anderson, J.

Waiving the informalities of the application, as for instance that it is not verified or supported by affidavit, 4 C. J., p. 511, 2 Ency. Pl. & Pr., pp. 310-311, it shows no other facts than the following: That the final decree was rendered on September 5, 1929; that appeal bond was filed and approved on the same day; and that the transcript has not been filed in this court. It is not shown, for instance, whether the record is to come with or without a stenographic transcript, and since by far the greater number of records do come with the stenographic transcript as a part thereof, we cannot assume that this is an unusual, rather than a usual, case in that respect. Under the law, the official stenographer has sixty days to transcribe his notes, to which fifteen days are added for the examination by counsel on both sides of that transcript, sections 596 and 597, Hemingway's Code 1927; and these periods have not yet elapsed.

When an application is made for a writ of certiorari, all the facts essential to establish the right of the applicant thereto must be shown; and an order therefor can no more be made where a part of the essential facts must be supplied by mere inferences which do not necessarily follow from the other facts stated than can any other order be made by a court upon that kind of an insufficient foundation. The motion is therefore overruled, but without prejudice to a renewal thereof at the proper time and on a proper definite showing of the essential facts.

Motion overruled.

ON SUGGESTION OF ERROR.

ON APPLICATION FOR WRIT OF CERTIORARI.

Anderson J., delivered the opinion of the court.

In the opinion handed down, the question whether the application for a writ of certiorari should have been sworn to was not decided, but expressly waived. The only question decided was whether the application for the writ stated all the facts essential to establish the right thereto. The opinion held that it did not. We will add this to what we said in the opinion.

The application should have set out whether the cause was coming up to this court on the pleadings and the judgment of the court alone, or, in addition thereto, on evidence taken by the court reporter, if the trial was had on evidence, and, if the latter, that the court reporter had transcribed and filed his notes of the evidence with the clerk of the court a sufficient length of time before the application for the writ to enable the clerk, with reasonable diligence, to copy and certify the record up to this court. In other words, it was the duty of appellant to show in the application that there had been unreasonable delay on the part of the clerk in...