Sayers & Scovill Co. v. Doak

• Decision Date: 02 November 1921
• Docket Number: 22043
• Citation: 89 So. 917,127 Miss. 216
• Parties: SAYERS & SCOVILL CO. v. DOAK. In re MEADERS' ESTATE
• Court: Mississippi Supreme Court

89 So. 917

127 Miss. 216

SAYERS & SCOVILL CO. v. DOAK.

In re MEADERS' ESTATE

No. 22043

Supreme Court of Mississippi

November 2, 1921

1. PRINCIPAL AND AGENT. Undertaker not "merchant or trader" within business sign statute.

The business sign statute (Code 1906, section 4784; Hemingway's Code, section 3128), which provides, among other things, that if a person shall transact business as a trader or otherwise, and fail to disclose his principal or the true owner by a sign in letters easy to be read, placed conspicuously at the house where the business is carried on all property, money, and choses in action used or acquired in such business shall, as to the creditors of such person, be treated as his property, applies alone to merchants or traders and persons ejusdem generis; it has no application to the business of an undertaker, even though carried on by such person in connection with his furniture and coffin business and in the same building; for an undertaker is not a merchant or trader, his business is entirely separate and distinct therefrom.

2. ASSIGNMENTS FOR BENEFIT OF CREDITORS. Mortgagee held entitled to enforce mortgage against property assigned, although description void.

Where a merchant, before making a general assignment for the benefit of his creditors without preferences, bought an automobile hears (which was covered by the deed of assignment), and to secure the purchase money therefor gave a mortgage on such hearse, the mortgagor is entitled to enforce such mortgage against the hearse in the hands of the assignee under the assignment for the unpaid purchase money, even though the description of the property conveyed in such mortgage be void, and the mortgage not recordable, because not properly acknowledged, for such a mortgage is an equitable lien, and will be enforced, not only against the grantor in such mortgage, but as against all others except innocent purchasers for value without notice.

3. ASSIGNMENT FOR BENEFIT OF CREDITORS. Mortgage held enforceable against property in hands of assignee, who is mere volunteer.

Such a mortgage may be enforced against the property therein conveyed in the hands of the assignee of the grantor in the mortgage holding under a general assignment for the benefit of creditors, for such assignee is a mere volunteer, and not a purchaser without notice for value.

HON. J G. MCGOWAN, Chancellor.

APPEAL from chancery court of Grenada county, HON. J. G. MCGOWAN Chancellor.

In the matter of the assignment of J. P. Meaders. Sayers & Scovill Company filed a cross-petition against L. T. Doak, assignee-receiver of the estate. Decree for the receiver, and the Sayers & Scovill Company appeals. Reversed and remanded.

This is a contest between appellant, Sayers & Scovill Company, and appellee, Doak, as assignee-receiver of the assets of J. P. Meaders, an insolvent debtor. Meaders, being insolvent, made a general assignment for the benefit of his creditors, which trust the assignee was proceeding to administer as assignee-receiver under chapter 8, sections 120 to 128, inclusive, Code of 1906 (chapter 4, sections 107 to 115 inclusive, Hemingway's Code), when the appellant filed a cross-petition in the matter of the said receivership, setting up that it had a valid mortgage for the balance of the purchase money due it, on a certain automobile funeral car covered by said deed of assignment, and part of the assets being administered by said receiver, and asking that its indebtedness and mortgage be established against said car. Copy of the mortgage was exhibited with appellant's cross-petition as a part thereof. The receiver filed an answer to appellant's cross-petition in which it was claimed that appellant's mortgage was void for want of proper description of the funeral car; that said mortgage was improperly acknowledged, and the acknowledgment improperly attested, and therefore it was not entitled to be recorded; and that since it was not recordable appellant was not entitled to the relief prayed for in its cross-petition. The cause was set down for hearing in the court below on the pleadings, exhibits, and record testimony alone. There was a decree denying appellant any rights under its mortgage, from which this appeal is prosecuted.

The facts necessary for a proper consideration of the questions involved are as follows: Meaders, the insolvent debtor, bought the funeral car in question from appellant some time during the year 1920 (the assignment was made on the 12th of March, 1921), and to secure the purchase money for the same executed and delivered to appellant a mortgage on said car, which was acknowledged and filed for record and recorded in the office of the chancery clerk of Grenada county, in which county Meaders carried on his business and had said car located. At the time of the assignment by the insolvent debtor, Meaders, he had paid only one of the purchase-money notes for said car. The cross-petition of appellant avers that Meaders at the time the car in question was bought by him and also at the time of the assignment was engaged in the furniture and undertaking business (italics ours), under the name and style of J. P. Meaders Furniture Company. The answer of the receiver to appellant's cross-petition states that Meaders the debtor was doing business under the name and style of J. P. Meaders Furniture Company and was engaged in selling furniture and buying and selling coffins and burying people (italics ours) and had a regular place of business in the city of Grenada, and that said hearse was acquired and used in said business.

Reversed and remanded.

Cowles Horton, for appellant.

Appellee claims that this mortgage is void for want of a proper description. Because it is void, as he contends, appellant is entitled to no relief. I purpose to show that neither of these contentions can be sound; that the description is valid, but if not, appellant still has a lien on this property which a court of equity must enforce. Appellee does not, and of course, cannot claim any rights as an innocent purchaser for value. Paine v. Hotel Co., 60 Miss. 360; Paine v. Sykes, 72 Miss. 351; Bank v. Kretschmar, 91 Miss. 617.

If that description of a rare and isolated funeral car is not good, I am unable to understand how this court could have upheld less certain descriptions as applied to live stock in Nicholson v. Karpe, 58 Miss. 34, and Williams v. Crook, 63 Miss. 9.

Neither do I think there is anything in the contention that the mortgage is not good because it fails to show the county and state of the location of the property. Wetlin v. Mount, 73 Miss. 526; Peacher v. Strauss, 47 Miss. 355; Wilkinson v. Webb, 75 Miss. 403; Ladnier v. Ladnier, 75 Miss. 777; Gex v. Dill, 86 Miss. 10.

The objection most strongly urged against this instrument is that it is not recordable on account of defective acknowledgment. Appellee claims that, since it is not a recordable instrument, appellant is entitled to no relief, because under the business sign, statute of this state, the property must be taken as the property of the assignor and liable to creditors, excluding, if the court please, this particular creditor and its security. My contention and my claim is: First, that the instrument was correctly recorded by the clerk, and next, even if not, this appellant as a secured creditor of this assignor, is still entitled to the relief prayed for.

It is conceded throughout this litigation that appellant and Meaders intended that the former should have a valid lien upon this car for the purchase price thereof, that they both acted in the utmost good faith, and endeavored to produce an instrument that would unquestionably bind this property for the payment of the purchase price; that appellee's position will operate to defeat the honest purpose and intent of these parties, and if this instrument is thus invalidated, it must arise, not from any species of equity, but from the strictest and stearnest of legal technicalities affecting not the substance but the mere form of the transaction. We naturally, therefore, ask ourselves the question: What, in this sort of a situation, should be our aim? Should we strive to uphold, or should we endeavor to defeat the purpose of the parties?

It should be the aim of courts in cases like this to preserve and not to destroy. Sir Matthew Hale said they should be astute to make acts effectual, according to the honest intent of the parties. U. S. v. Clarke, 95 U.S. 710. The above language was applied to a defective acknowledgment, and stands in exact accord with the policy of this court, so often enunciated. Appellee's efforts are to tear down and destroy, and he seeks to do this by the hardest and strictest of all legal technicalities: that sort, for instance which sacrifices substance to form, which ignores the things and runs off after the shadow.

In Barnard v. Elder, 50 Miss. 342, this court says "that acknowledgments are to be examined in a spirit of liberality and indulgence and should be sustained when it can be done by fair legal intendment." At this point, I respectfully submit to the court that when an objection is made to an acknowledgment and it requires a great display of learning and laborious argument to override and destroy the acknowledgment, the only safe plan, the only plan in keeping with our own adjudications, is to uphold the acknowledgment; because the concern which confronts us is not a matter of legal refinement and nicety at all, but what is the legal intendment of the parties from the words they have used. Russ v. Wingate, 30 Miss. 447; Pickett v. Doe, 5 Sm. & Mar. 487; Wilkins v. Webb, 9 Sm. & Mar. 535; Kenneday v. Price, 57 Miss. 771; Love v. Taylor, 26 Miss. 574; Levy v. Williams, 38 Miss. 34; Halls v. Thompson, 1 Sm. & ...