Candler v. Cromwell, 57 So. 554

Candler v. Cromwell

57 So. 554 | Miss. | 1911

Maxes, C. J.,

delivered the opinion of the court.

Briefly stating this case, it is about as follows: In 1908, M. A. Candler recovered a judgment against King Cromwell for seventy-two dollars and twenty-three cents in a justice of the peace court. In November of that year, the judgment was enrolled in the office of the circuit clerk of Alcorn county, in compliance with sec*168tion 2742 of the Code of 1906, and became a lien on all the property owned by King Cromwell, if he owned any. On March 28, 1910, King Cromwell executed a mortgage to one C. Ayers, with W. B. Wilson as trustee, on all live stock and on all crops of corn and cotton to be grown by Cromwell during the year 1910, in Alcorn county, on certain lands described in the mortgage. The controversy over the particular cotton involved in this case is conceded to have been grown during the year 1910 on the land described in the mortgage, and is covered by the mortgage, unless excepted therefrom for reasons to be subsequently stated. The consideration of the mortgage recites that it is given because Cromwell “is justly indebted to the third party [Ayers] in the sum of $184.95, more or less, as evidenced by note of even date for $134.95, and an open and running account for $50, more or less, as shown on the books of the third party, which indebtedness the first party desires and intends by this deed more effectually to secure and make certain payment thereof.” The above quotation shows that the- trust deed was given for the purpose of securing a note for one hundred and thirty-four dollars and ninety-five cents, and open and running account for fifty dollars, more or less, making in total the sum of one hundred and eighty-four dollars, and ninety-five cents, specified in the face of the trust deed. Under this trust deed it is argued that Ayers furnished Cromwell, not only the fifty dollars specified in the open and running account, but furnished eighty-seven dollars additional, making a total amount furnished of one hundred and thirty-seven dollars, instead of fifty dollars, which, when added to the note of one hundred and thirty-four dollars and ninety-five cents, makes a total indebtedness due Ayers for the year 1910 of about two hundred and seventy-one dollars. Cromwell raised about five and one-half bales of cotton, the value of which is conceded to be less than the amount owing Ayers. The conten*169tion of Candler is that his judgment lien is- superior to the claim of Ayers under the mortgage for all value of the cotton in excess of one hundred and eighty-four dollars and ninety-five cents, or about that sum. In other words, Candler claims that the open account was to be for fifty dollars, more or less, and that in the use of this term the amount which Ayers had the right to furnish Cromwell was limited to a sum approximating nearly the sum of fifty dollars; that is to say, about fifty-two dollars or fifty-three dollars, or forty-seven dollars or forty-eight dollars. Candler denies the right of Ayers to assert his mortgage to the full amount furnished under the trust deed, and claims that his judgment lien is superior to the mortgage for the excess. Accordingly, Candler had an execution issued under his judgment and levied on the cotton, whereupon "Wilson, trustee in the trust deed, propounds a claim for same. Candler offered to pay Ayers’ claim to the extent that the trust deed shows on its face the amount actually named therein; that is, Candler proposed to pay Ayers the note of one hundred and ninety-four dollars and ninev-five cents, and the account of fifty dollars. On the trial in the court below, the court held that Ayers could hold the cotton for the actual amount furnished by him under the trust deed to Cromwell, and awarded the value of the property to the trustee, from which judgment Candler appeals.

In the cases of Cayce v. Stovall, 50 Miss. 402, and Cooper v. Turnage, 52 Miss. 431, this court held that, while a judgment lien takes effect on • a growing crop only from the time it has an actual existence, the lien does not relate back to the rendition or enrollment of the judgment but a lien or mortgage on a growing crop relates back to the date of its creation, and takes effect from the date of the execution of the mortgage, thereby taking precedence of a judgment lien.

When a trust deed specifies that the mortgagee will furnish a specified sum, followed by the words “more *170or less,” it does not fix any limitation on the lien which is created by the mortgagee, in case the mortgaee, with the assent of the mortgagor, exceeded the amount actually named in the face of the mortgage. The mortgage expressly says that the mortgagor and mortgagee agree that the mortgagee shall furnish to the mortgagor the sum of fifty dollars, “more or less.” How much more or how much less may be the subject of agreement, between them according to the terms of the mortgage,, and when they have agreed, by the mortgagee furnishing and the mortgagor accepting the excess furnished, there is no field for speculation as to what was meant in the contract by the use of the words “more or less,” because the parties to the contract have definitely settled it, and when no fraud is charged third parties have-no right to complain. The courts construe doubtful contracts, when the parties themselves cannot agree as to the true meaning; but when the parties agree, and the-contract is made certain, there is no field for inference by the court.

Let us see where the contention of counsel for appellant would lead us. A judgment creditor succeeds to-only such rights in the -judgment debtor’s property as the judgment debtor actually has. The judgment creditor merely succeeds the judgment debtor; that is, takes-his place and subjects the actual interest of the judgment debtor to his demand. The judgment creditor is-barred by all the equities which bar the judgment debtor, and can assert no demand that the judgment debtor is precluded from asserting. Harris v. Hazlehurst Oil Mill, 78 Miss. 603, 30 So. 273; Foute v. Fairman, 48 Miss. 536; Miss. Val. Co. v. Chicago, etc., R. R. Co., 58 Miss. 846. It needs no argument to show that Cromwell could not defeat the lien of this mortgage after accepting advances under it of more than fifty dollars, and for the-same reason that he cannot do so his judgment creditor, who merely succeeds to his rights, is also precluded *171from doing so. The words “more or less” may have a different meaning when applied to different instruments, and depending upon the way in which the controversy arises. If a person make a deed to another, containing by accurate description so many acres, “more or less,” and a controversy should arise as to what was meant, the court might be called upon to construe what was meant. If a person should contract to sell to another one thousand bales of cotton, “more or less,” the court might again be called upon to construe what was meant by the use of the words, etc.; but in a mortgage which snows that the parties intended to furnish so much money, “more or less,” and when, in fact, by the actual amount furnished under the contract, they make certain how much more shall be furnished, third parties cannot force the court to place any limitation on the meaning of the words different from that which the parties themselves have fixed.

A mortgage need not specify definitely the amount to be furnished. This has been frequently held. The mortgage might have merely specified that it was 'given to secure such future advances as might be agreed upon. In the case of Wilczinski v. Everman, 51 Miss. 841, this court has said: “A mortgage to secure future advances, which on its face gives information as to the extent and purpose of the contract, so that a purchaser or junior creditor may, by an inspection of the record, and by ordinary diligence and prudence, ascertain the extent of the incumbrance, will prevail over the supervening claim of such purchaser or creditor as to all advances made by the mortgagee within the terms, of such mortgage, whether made before or after the claim of such purchaser or creditor arose. It is not necessary for a mortgage for future advances to specify any particular or definite sum which it is to secure. It is not necessary for it to be so completely certain as to preclude the necessity of all extraneous inquiry. If it con-' *172tains enough to show a contract that it is to stand as a security to the mortgagee for such indebtedness as may arise from future dealings between the parties, it is sufficient to put a purchaser or incumbrancer on inquiry, and, if he fails to make it in the proper quarter, he cannot claim protection as a bona fide purchaser. The law requires mortgages to be recorded for the protection of creditors and purchasers. When recorded, a mortgage is notice of its contents. If it gives information that it is to stand as security for all future indebtedness to accrue from the mortgagor to the mortgagee, a person examining the record is put upon inquiry as to the state of dealings between the parties and the amount of indebtedness covered by the mortgage, and is duly advised of the right of the mortgagee by the terms of the mortgage to hold the mortgaged property as security to .him for such indebtedness as may accrue to him. Thus informed, it is the folly of any one to buy the mortgaged property, or take a mortgage on it, or give credit on it; and, if he does so, his claim must be subordinated to the paramount right of the senior mortgagee, who in thus securing himself -by mortgage, and filing it for record, as required by law, has advertised the world of his paramount claim on the property covered by his mortgage, and is entitled to advance money and extend credit according to the terms of his contract thus made with the mortgagor, who cannot complain, for such is his contract; and third persons afterwards dealing with him cannot be heard to complain, for they are affected with full notice by the record, of what has been agreed on by the mortgagor and mortgagee.” See, also, Melton v. Williams Co., 83 Miss. 624, 36 South. 152.

The Wilczinski case expressly holds that it is not necessary for a mortgage to specify any particular or definite sum which it is to secure. The meaning of the mortgage, when it says an open account furnished under it shall be fifty dollars, more or less, can become of *173importance, in the absence of fraud, only to the parties themselves, when there is a controversy between them as to its meaning.’ In other words, if the mortgagor had failed to furnish the mortgagee, more than twenty-five dollars, and the mortgagee was suing him for a breach of this contract, .the use’ of the words “$50, more or less,” might become of importance; but it can never be brought into question by third parties, when the parties to the contract have themselves interpreted it by actually furnishing in a certain amount, and when there is no dispute between the parties as to this.

Affirmed.