Ross-Meehan Brake-Shoe Foundry Co. v. Pascagoula Ice Co.

• Decision Date: 13 May 1895
• Citation: 18 So. 364,72 Miss. 608
• Court: Mississippi Supreme Court
• Parties: ROSS-MEEHAN BRAKE SHOE FOUNDRY Co. v. PASCAGOULA ICE CO. ET AL

18 So. 364

72 Miss. 608

ROSS-MEEHAN BRAKE SHOE FOUNDRY Co. v. PASCAGOULA ICE CO. ET AL

Supreme Court of Mississippi

May 13, 1895

FROM the chancery court of Jackson county, HON. W. T. HOUSTON Chancellor.

Bill by the Ross-Meehan Brake Shoe Foundry Company, as assignee of a note secured by a lien on personal property sold the Pascagoula Ice Company. The stipulation in the written contract referred to in the last paragraph of the opinion, is as follows: "The party of the first part hereby agrees to replace, at their cost, any part of the said machinery and outfit which may break or give way within two years from its delivery, provided said break is caused by any weakness or defect."

The opinion contains a further statement of the case.

Decree reversed and cause remanded.

Brame &amp Alexander, for appellant.

1. The reservation of legal title to the machinery was only intended as a security. The transaction simply amounted to a mortgage. The court will look through the form of the transaction and enforce the real intention of the parties. On this point, see Duke v. Shackelford, 56 Miss. 552; Dederick v Wolfe, 68 Ib., 500; Tufts v. Stone, 70 Ib., 54.

2. The assignment of the note carried with it the right to enforce the security provided for in the written contract. This security is a mere incident of the debt. This would be true of any lien existing by way of mortgage or otherwise. Natchez v. Minor, 9 Smed. & M., 544; Kausler v Ford, 47 Miss. 289; Gleason v. Wright, 53 Ib., 247; Kerr v. Moore, 54 Ib., 286; Taylor v. Nelson, Ib., 524; Dederick v. Wolfe, 68 Ib., 500; Tufts v. Stone, 70 Ib., 54; 93 U.S. 199; 16 Wall., 271; 43 Md. 182; 35 Mich. 474; 86 Ky. 67; 4 Lea (Tenn.), 439; 65 Ala. 285; 94 Ib., 33; 47 Minn. 521; Jones on Liens, §§ 28, 991; Jones on Chat. Mor., § 503; 1 Am. & Eng. Enc. L., 844.

3. The chancery court has general original jurisdiction in enforcing liens. The fact that complainant might have sued at law on the note, or that the machinery could be seized in an action of replevin does not affect the jurisdiction of the court to enforce the lien and adjust the equities of the parties. Conferring a remedy at law by writ of seizure or otherwise does not take away the jurisdiction of the chancery court. The remedies are cumulative. 23 Miss. 88; 44 Ib., 89; 48 Ib., 303.

Where the remedy in equity is more full and complete, the chancery court has jurisdiction. 1 How. (Miss.), 584. On this point, see also Marx v. Davis, 56 Miss. 745; Whitney v. Bank, 71 Ib., 1009. The mere expression, in the opinion of the court, in Journey v. Priestly, 70 Miss. 584, does not militate against our position; and this is true of the decision in McPherson v. Lumber Company, Ib., 649. If complainant should seize the property, it would not be the owner. Resort to equity to sell it and adjust the rights of the parties would still be necessary.

4. No objection was raised in the pleadings on the ground of the nonjoinder of the Southern Ice Machine Company. It would be bad practice, and would work a great hardship, to allow a defense like this to be sprung, for the first time, on the final hearing. See Rodd v. Durbridge, 53 Miss. 694; Green v. Gaston, 56 Ib., 748. Besides, the assignor of the note had no interest in the controversy, and was not a necessary party.

5. Conceding that there was a nonjoinder of a necessary party, it was the plain duty of the court to allow the bill amended in this respect. The statute, as to this, is mandatory. Code 1892, § 542; Jeffries v. Jeffries, 66 Miss. 216. Over the objection of complainant, the defendant was allowed, at the hearing, to amend the answer so as to deny that the original contract was assigned with the note. This being done, the court then held that the assignor was a necessary party, yet, when complainant sought to amend by making it a party, this was refused, and the bill was dismissed for want of jurisdiction. The action of the court was entirely illogical and erroneous.

E. J. Bowers & O. B. Sansum, for appellees.

1. The absolute title to the property in question was retained by the seller. This transaction partook of none of the characteristics of a mortgage. The title being reserved, the property could be seized; but the complainant could not proceed in equity to enforce a lien or claim against its own property. On this point, see Jones on Chat. Mor., § 26; 20 Barb. (N. Y.), 364; 21 Ib., 581; 32 Ark. 308; 10 Leigh (Va.), 251; 40 Miss. 462. The case cited by opposite counsel from 4 Lea (Tenn.), 439, is an authority for the position assumed by us. Dederick v. Wolfe, 68 Miss. 500, and Tufts v. Stone, 70 Ib., 54, have no application to the question involved here.

The case of Journey v. Priestly, 70 Miss. 584, is decisive of the question of jurisdiction. It was there held that the chancery court would not have had jurisdiction but for the fact that the property sought to be made liable was an interest in a partnership. On this point, we also refer to 21 Am. & Eng. Enc. L., 632, and authorities cited.

The court has no jurisdiction to enforce the performance of the contract, as to giving a trust-deed and insuring the property. Complainant is not the owner of the contract containing these stipulations. The note in suit was taken long after the execution of the contract, and was a waiver of these stipulations. 3 Am. & Eng. Enc. L., 435. Besides all this, there was never any request made of the defendants to execute the trust-deed or to insure the property, and the bill contains no prayer for any performance of these provisions.

2. The promissory note does not constitute a lien, and it is not declared upon as such. It is true the note stipulates that it is secured by a Vendor's lien on machinery, but there is no such lien in respect to personal property, and, besides, the description of the property in the note is void for uncertainty.

3. The decree appealed from is correct, because appellant wholly failed to establish title to the contract sought to be enforced, the note and contract being entirely distinct. The note was given long after the contract was executed, and in satisfaction thereof. But, conceding the contract to be still in force, it vests absolute title to the property in the Southern Ice Machine Company, which is not a party to the suit. The failure of complainant to prove either a transfer of the contract or of the chattels was a lack of title going directly to the right to invoke the aid of any court, either as to the contract or the chattels. As to the necessity of showing an assignment of the contract or of the chattels, see McPherson v. Lumber Co., 70 Miss. 649.

4. Complainant cannot object to the amendment of the answer denying the assignment of the contract, because the action of the court was not excepted to. The amendment was within the discretion of the court, and this discretion was properly exercised. We submit, further, that even if the vendor had been made a party, and it was now seeking to foreclose the contract as a mortgage, the court would still be without jurisdiction.

Nothing is involved on this appeal except the question of jurisdiction, and if we are wrong as to it, we ask that the cause be remanded, in order that it may be tried on the merits.

Argued orally by L. Brame, for appellant, and O. B. Sansum and E. J. Bowers, for appellees.

OPINION

COOPER, C. J.

Nothing is presented by this appeal, except the question, whether, on the facts stated by the complainant, the cause is one of equitable jurisdiction.

The facts are, that the Southern Ice Machine Company sold to the Pascagoula Ice Company an ice machine, under a contract by which it was provided that the machine was to be erected and put in operation by the seller, in a house to be built by the purchaser in the town of Scranton. The machine was to be paid for partly in cash and partly in installments of six and twelve months. The contract contained provisions as follows "It is further agreed upon between the parties hereto that, upon the erection of said buildings by said party of the second part, and erection of said machine by the party of the first part, and before and after it is in complete running order, the party of the first part shall be the sole owners, and the machinery so erected and in running order shall be the property and title of the party of the first part; and the party of the second part agrees to execute a deed of trust on all their lands, buildings and machinery owned by them to the party of the first part, or such personal security as is acceptable to the party of the first part, to secure the payment of the notes given as above. . . The parties of the second part further agree to keep machinery and buildings insured in favor of the said Southern Ice Machine Company, to the amount as their interest may require. . . It is understood and agreed that, if, when the machine is completed and running, the parties of the second part prefer giving their sixty days' note for the second payment in lieu of cash, then the party of the first part agrees to accept said note, same...