Sandy v. Crump

• Decision Date: 04 May 1925
• Docket Number: 24654
• Court: Mississippi Supreme Court
• Parties: SANDY et al. v. CRUMP. [*]

103 So. 804

139 Miss. 163

SANDY et al. v. CRUMP. ^[*]

No. 24654

Supreme Court of Mississippi

May 4, 1925

Division A

EXECUTORS AND ADMINISTRATORS. Lien of trust held to exist from misapplication of funds, making probate of claim unnecessary to enforce it as against all but bona-fide purchaser.

Under Code 1906, Section 2111 (Hemingway's Code, Section 1779) authorizing creditor having "lien of any kind on property of the decedent" to enforce it against such property without probating claim, where deceased borrowed money, which he secured by mortgage on land, and agreed to use to pay off prior mortgage thereon, but used to pay off a mortgage on other land, lien of trust on latter, which arose from misapplication of finds, not by decree declaring its existence, may be enforced, in absence of intervening rights of bona-fide purchaser for value without notice.

HON ALLEN COX, Chancellor.

APPEAL from chancery court of Pontotoc county, HON. ALLEN COX Chancellor.

Suit by R. E. Crump against Mrs. Cora Sandy and others. Decree for complainant, and defendants appeal. Affirmed.

Decree affirmed.

T. A Clark, for appellants.

It was the contention of appellee in the court below that he did not have to register and probate his claim against the estate of the deceased because he had a lien on this property and therefore it was not necessary for him to probate his claim against the estate. It was the contention of the appellant in the court below that it was necessary for the appellee to probate his claim against the estate as he did not have any lien on this property in Pontotoc county but so far as the deed of trust was concerned against the lands in Simpson County that he would not have to probate his claim against the estate.

It is the contention of appellants that if the appellee was entitled to fasten a trust on this land in Pontotoc county for the payment of his debt, it is not such a lien as contemplated by the statute and he does not have to first probate his claim against the estate and the lien referred to in section 1779, Hemingway's Code, has reference solely to specific liens or liens which the administrator is presumed without any presentation to know of the existence of a demand and the specific lien securing it. Fish v. DeLary, 59 A. S. R. 764; Miller v. The Trustees of Jefferson College, 5 Smedes & M. 651; Miller v. Helm, et al., 2 Smedes & M. 687.

The lien contemplated by the statute that does not have to be probated against the estate is a specific lien. 18 Cyc. 464. We take the position that the word lien under the statute means those liens that are created by contract and not those created by operation of law. Those liens that are of record of which the world and administrator has notice. Casey v. Ault, 4 Wash. 167, 29 P. 1048.

The will of W. H. Sandy wherein he devised this property to his wife and children did not create an express trust on the property real and personal of the testator to pay debts and therefore the limitation provided under section 1775, Hemingway's Code, and amendments thereto that all claims against a deceased person shall be registered, probated and allowed, etc. Gordon v. McDougal, 84 Miss. 715.

Mitchell & Mitchell, for appellee.

The only question raised by counsel for appellants is that the claim of appellee should have been probated against the estate of W. H. Sandy, deceased, and not having been probated, this action cannot be maintained. The statute involved is section 1779, Hemingway's Code. It is the contention of appellee, that under the statute named, he was not required to probate this claim in order to enforce the same and the lien attending it against the specific property herein sought to be subjected to the payment of the claim. The purpose of recording the mortgage or other lien is only for the benefit of him who claims thereunder, and where the rights of other parties are not involved, it is always immaterial whether an instrument has been recorded or not.

The proof in the case is uncontradicted and establishes beyond the shadow of a doubt that the decedent, W. H. Sandy, when he borrowed the money from appellee, promised to use the same to discharge a prior mortgage on the property with which he attempted to secure appellee; and instead of doing this he used the money to discharge a mortgage on the property involved in this cause. In such a case the law will transfer the lien, so to speak, from the property in the deed of trust given to appellee, and fix it on the property where the deceased applied it. Counsel for appellant erroneously, we think, says that there was no lien in existence until the court by its decree created it. We contend that the lien existed in fact from the moment when the deceased applied the money as he did. It immediately arose by operation of law, and had just as much an existence in fact as if the deceased had given appellee a mortgage on the property. The court simply found that a lien existed and had been in existence, established it by its decree and provided for its enforcement. It was a specific lien, that is, it attached to certain specific property. The court could not "create" a lien; it could only determine from the testimony whether a lien already existed; and having found from the testimony that a lien did exist, it so declared and decreed.

It is true, we think, that if W. H. Sandy had sold this land to an innocent purchaser for value, appellee could not enforce his lien against such a purchaser; and also if there were other creditors of the estate whose claims had been duly probated, perhaps appellee could not enforce his lien against the property to the exclusion of these other creditors. But no such condition exists here. It is perfectly obvious that these beneficiaries do not occupy the positions, nor possess the rights of innocent purchasers for value. Their rights are based on a purely voluntary conveyance.

The...