Swift v. Aberdeen Lumber Co.
| Citation | 159 So. 301,172 Miss. 697 |
| Decision Date | 04 February 1935 |
| Docket Number | 30770 |
| Court | United States State Supreme Court of Mississippi |
| Parties | SWIFT et al. v. ABERDEEN LUMBER Co. et al |
Suggestion Of Error Overruled April 1, 1935.
APPEAL from the chancery court of Warren county HON. J. L. WILLIAMS Chancellor.
Suit by P. B. Swift against the Aberdeen Lumber Company, J. N. Woollett, and another, in which defendant Woollett filed a cross-bill. From a decree for the first-named defendant in part, plaintiff appeals. Reversed and remanded.
Reversed and remanded.
Win. I. McKay and Hirsh, Dent & Landau, all of Vicksburg, and Gilliland, Taylor & Gilliland, of Memphis Tenn., for appellant.
Swift had a valid, expressly reserved, and timely recorded vendor's lien, and also a valid, cumulative, and timely recorded purchase money trust deed lien, on the standing timber, sold and conveyed by him to the Delta Hardwood Lumber Company, and by the latter subsequently sold and conveyed to the Delta Hardwood Company, the latter vendee expressly assuming the payment of the purchase money notes so secured.
Swift's purchase money liens followed the logs and lumber.
A mortgage given for the unpaid balance of purchase money on a sale of land, simultaneously with a deed of the same and as part of the same transaction, is entitled to the highest consideration of a court of equity, and takes precedence of prior judgments and all other existing and subsequent claims and liens of every kind against the mortgagor, to the extent of the land sold.
41 C. J. 528; Walton v. Hargroves, 42 Miss. 18.
Grant of option to cut and remove on deposits is no waiver of liens.
Swift's consent to lease is no waiver of his liens.
The intention to waive the lien must be clearly evident.
In the absence of conduct creating an estoppel, a waiver should be supported by an agreement founded upon a valuable consideration.
40 Cyc. 263-4; 13 C. J. 544-5.
Swift was not estopped to claim priority of liens.
Before an estoppel can be raised there must be certainty to every intent, and the facts alleged to constitute it are not to be taken by argument or inference.
21 C. J. 1139 and 1156; Turnipseed v. Hudson, 50 Miss. 420; Cole-M.-N. Co. v. DuBard, 135 Miss. 20; Ware v. Cowles, 24 Ala. 446; Davis v. Butler et al., 128 Miss. 847; 55 Miss. 255-261; 69 Miss. 403; Hart v. Foundry Co., 72 Miss. 830.
We cannot conceive of any controversy over the conclusion that the Delta Hardwood Company contracted with Woollett, merely in bare name only, but with the Aberdeen Lumber Company, in truth and reality, to act as its sales agent, and likewise in the matter of the lease, letter, and trust deeds purporting to secure the advances.
Swift's mortgage security was confused and commingled.
Swift's liens attach to the whole confused mass.
Swift's mortgaged property was wrongfully converted.
Heard v. James, 49 Miss. 236; 11 C. J. 632.
Where the mortgagor wrongfully appropriates the mortgaged chattels to his own use, he is liable for conversion.
11 C. J. 588; Witczinski v. Everman, 51 Miss. 841.
The proceeds of the mortgaged property sold stand in the place of the thing sold.
Watson v. Cement Co., 93 Miss. 553; 135 Miss. 20.
Contracts, in name of Woollett, of Aberdeen Lbr. Co. are void.
Both liens were duly and timely recorded. The records thereof were notices to the world of Swift's liens.
The Aberdeen Lumber Company not being authorized to do business in our state, the attempted contract to do business in our state was void and unenforceable.
Quartette Music Co. v. Haygood, 108 Miss. 755; Peterman Const. Co. v. Blumenfeld, 125 So. 548.
By assuming the mortgage debt the purchaser is estopped from attacking the validity of the mortgage for any defect in its execution, or for failure to record.
An agent or commission merchant receiving and selling mortgaged property for a mortgagor, although with no notice other than that given by the record of the mortgage, is liable to the mortgagee for conversion, even though such selling agent is an auctioneer.
11 C. J. 632; 2 Kent's Com., 363, note 1 c.; Chandler v. DeGraff, 25 Minn. 88.
Where a wrongdoer has intentionally mixed the goods of another with his own, so as to be indistinguishable from his own, such other has the right to select the quantity due him from those with which they are confused or intermingled, and the innocent purchaser from the wrongdoer gets no greater right.
Strubble v. Trustees, 78 Ky. 481; Jewett v. Dringer, 30 N.J.Eq. 304; Blodgett v. Seals, 78 Miss. 522; Peterson v. Polk, 67 Miss. 163; Alexander v. Ziegler, 84 Miss. 560; Watson v. Cement Co., 93 Miss. 553; C. McI.-N. Co. v. DuBard, 135 Miss. 20; Evans v. Morgan, 69 Miss. 328; Ouillette v. Davis, 69 Miss. 762; 25 C. J. 412; Hughes v. Abston, 59 S.W. 296.
A junior mortgagee with notice of a senior mortgage is liable to the senior mortgagee for conversion where he takes possession of the property and appropriates it to his own use, where he receives the property and puts it beyond the reach of execution under the senior mortgage, where he sells or assists in the sale of the property for a full consideration and without recognizing the rights of the prior mortgagee, where he induces a purchaser to buy from the mortgagor.
11 C. J. 591 and 592; 20 A.L.R. 128; 28 A.L.R. 694; 36 A.L.R. 1379; 43 A.L.R. 395.
Leonard E. Nelson, of Vicksburg, for cross-appellant.
The Aberdeen Lumber Company is not entitled to any relief.
This cross-appellant holds the legal title to, and constructive possession of all the lumber in controversy, and as such was a necessary and indispensable party to the cross-bill of Woollett; otherwise this cross-appellant without being in court or a party to the proceeding as to Woollett and the Aberdeen Lumber Company is deprived of all the property of his estate to his prejudice and that of creditors of said estate without having had the opportunity to contest the validity of the alleged liens of the parties obtaining the relief.
It is well settled not only that any decree rendered in such a case is a nullity in so far as it affects the rights of a person not a party thereto, but the court upon discovering the absence of a necessary and indispensable party even on appeal will raise the objection of its own motion.
This cross-appellant was clearly an indispensable party to the proceedings under which the relief was granted.
An objection made for the first time at the hearing, or on appeal, is not favored and will not be sustained unless the absent parties are clearly indispensable.
In order that Woollett or the Aberdeen Lumber Company may enforce their alleged liens on the lumber in the case at bar, this cross-appellant as the owner of the legal title thereto must be made a party thereto.
The Aberdeen Lumber Company is real party in interest.
Contracts and liens of Aberdeen Lumber Company in name of Woollett are unenforceable in Mississippi.
Sections 4140-4164, Code of 1930; 14a C. J. 1270; Dalton Adding Machine Co. v. Commonwealth of Virginia, 88 S.E. 167; Singer Sewing Machine Co. v. Brickell, 233 U.S. 304; London Assurance Co. v. Marreiro, 167 U.S. 160; Dozier v. Alabama, 218 U.S. 124-8, 28 L.R.A. (N.S.) 264; Rearick v. Pennsylvania, 203 U.S. 507; Norfolk v. Simms, 191 U.S. 441.
It is plain not only that independently of the question whether the Aberdeen Lumber Company's business was generally local or interstate, it was doing business in Mississippi and so within the statute, but also it was in fact doing a substantial local business in Mississippi within the meaning of the law of interstate commerce.
Bohn v. Lowry, 77 Miss. 427, 27 So. 605.
The trust deed on stack of lumber is void.
Bank of Coffeeville v. Stone, 118 So. 413; Bank v. Goodbar, 73 Miss. 566; Andrews v. Partee, 79 Miss. 80; Johnson v. Tuttle, 65 Miss. 492; Baldwin v. Little, 64 Miss. 126; Britton v. Criswell, 63 Miss. 394; Oil Company v. Carr, 97 Miss. 234.
Brunini & Hirsch, of Vicksburg, for appellees.
Swift has purchase money liens. It is admitted that Swift did have a vendor's lien on the standing timber for the balance of the purchase money due him; that it was further protected by a deed of trust; and that the obligation to pay the balance of said purchase money besides rested upon the Delta Hardwood Lumber Company and the Delta Hardwood Company.
Standing timber may be conveyed separately from the land by deed or grant, or as heretofore shown may be excepted or reserved to the grantor in a conveyance of the land. In this event two distinct estates are created, one in the land and the other in the timber.
Butterfield Lbr. Co. v. Guy, 92 Miss. 361; 38 C. J. 153, 157 and 162.
The phrase "cut and remove," this honorable court will recognize, is repeatedly used throughout lumber contracts and in the decisions of this honorable court and the courts of the land. The word "remove" means "to take away," or "to transfer from one place to another." We see in so many cases the term "cut and remove" imposes on the purchaser the duty not only to cut the logs, but to "remove" the same, and in many cases the failure of the purchaser to remove the logs from the land where cut within a reasonable time, as fixed by the contract, causes the logs to revert to the vendor.
Stewart v. Herring, 138 Miss. 719; Ladnier v. Ingram, 135 Miss. 632; Smith v. Salmen Brick & Lbr. Co., 151 Miss. 329.
If the agent, the lumber company, failed to perform its duty, it is accountable to Swift, but not the Aberdeen Lumber Company.
The lien is lost where the vendor consents to a sale of the lumber...
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