107 So. 874 | Miss. | 1926
Appellee based his right to the possession of the sawmill upon the provisions of a deed of trust executed by H.E. Bowen to appellee as trustee, to secure an indebtedness to the First National Bank of Pontotoc. Appellant based his right to the possession of the sawmill upon a purchase thereof from said Bowen, after the execution of said deed of trust. The trial was had on agreed facts between the parties in connection with the provisions of the deed of trust involved, which deed of trust was introduced in evidence on behalf of appellee. The following *506 is deemed a sufficient statement of the controlling facts of the case:
On October 1, 1923, H.E. Bowen executed his promissory note for two hundred ninety-four dollars and ten cents, payable to the First National Bank of Pontotoc. On the same day he executed a deed of trust to appellee, R.P. Wilson, as trustee, on the sawmill involved, to secure that note. The deed of trust, in addition to reciting that it was given to secure the note of two hundred ninety-four dollars and ten cents, contained the following provision:
"(B) Also any other indebtedness heretofore, now, or hereafter with either the said bank or the holder of the above-described note or notes or grantors herein or either of them whether such other indebtedness be evidenced by note, open account, overdraft or any other manner whatsoever including also any indebtedness of any grantor made as joint maker, security, indorser or grantor."
At the time of the execution of the note for two hundred ninety-four dollars and ten cents and the deed of trust to secure the same, H.E. Bowen was also indebted to the First National Bank of Pontotoc in the sum of six hundred three dollars and forty-nine cents, a balance due on a note theretofore executed by him to the bank on which H.B. Bowen was surety. At the time of the execution of the deed of trust nothing was said between the grantor therein, H.E. Bowen, and the First National Bank of Pontotoc in reference to securing any other indebtedness than the two hundred ninety-four dollars and ten cents. So far as H.E. Bowen was concerned it was his purpose in executing the deed of trust to secure alone the note for two hundred ninety-four dollars and ten cents. He did not read the deed of trust and knew nothing of the provision therein for securing any other indebtedness he was at that time due the bank. Appellant purchased from H.E. Bowen, for a valuable consideration, the sawmill involved. At the time of appellant's purchase he had *507 no actual notice of the deed of trust on the sawmill executed by H.E. Bowen to the First National Bank of Pontotoc. At the time, however, of his purchase and for some time prior thereto, the deed of trust had been duly filed and recorded in the office of the chancery clerk of Pontotoc county, where the sawmill was located. Appellant, therefore, had constructive notice of what the record of the deed of trust imported. At the time of appellant's purchase of the sawmill, H.E. Bowen's note to the First National Bank of Pontotoc for two hundred ninety-four dollars and ten cents, with interest, had been paid and marked canceled, and with the deed of trust surrendered to H.E. Bowen by the bank. The deed of trust, however, stood uncanceled on the records of trust deeds in the office of the chancery clerk. H.E. Bowen having failed to pay the balance due of six hundred three dollars and forty-nine cents on the note on which H.B. Bowen was surety, the bank had appellee, as trustee in the deed of trust, to demand possession of appellant of the saw-mill for the purpose of foreclosure by advertisement and sale under the provisions of the deed of trust. Appellant refused to surrender possession to appellee. Thereupon this action of replevin was brought by appellee to recover the sawmill for the purpose of foreclosure of the deed of trust thereon to the bank.
Appellant's main contention is that he was protected in his purchase of the sawmill because the deed of trust in question was invalid as security for any other indebtedness to the bank than the note for two hundred ninety-four dollars and ten cents.
The agreed facts upon which the case was tried show beyond question that H.E. Bowen did not intend at the time of the execution of the deed of trust to secure any other indebtedness than the note for two hundred ninety-four dollars and ten cents, and they also show beyond question that he was ignorant of the provision in the deed of trust for the security of any other indebtedness he was at that time due the bank. Under the law, did those *508 facts render the deed of trust invalid as security except as to the indebtedness of two hundred ninety-four dollars and ten cents. We are of opinion that they did not. There is no evidence of the bank having perpetrated a fraud upon Bowen in the execution of the deed of trust. There is no evidence of false representations made by the bank of Bowen to induce him to execute the deed of trust. He executed it without reading it. He did not know its contents in full, it is true, but that was his fault and not the fault of the bank. He was as much bound by the provisions of the deed of trust as if he had read them. Under the law a person who blindly signs a contract is bound thereby as fully as if he knew its contents, provided no fraud is exercised to procure its execution. He will not be heard to say that he did not know its contents. If the law were otherwise, the door would be open wide for frauds and perjuries.
Appellant cites authorities to sustain the position that a mortgage is security only for the indebtedness in contemplation of the parties at the time of its execution, and, further, that proof aliunde may be received to identify the indebtedness intended to be secured by the mortgage. Those principles have no application here because the deed of trust in question specifically states that, in addition to the note for two hundred ninety-four dollars and ten cents, it should stand as security for any other indebtedness at that time owing by Bowen to the bank. The language of the deed of trust in that respect is unambiguous; it cannot be changed by parole evidence for the purpose of showing what indebtedness was intended to be secured. Parole evidence is not admissible to contradict the plain and unambiguous provision of a written contract.
The appellant lays stress on the fact that the bank, when the note for two hundred ninety-four dollars and ten cents was paid by Bowen, surrendered to him the deed of trust in question. The deed of trust should not *509 have been surrendered by the bank; it had not been discharged; its surrender was doubtless a mere oversight on the part of the bank; it was purely voluntary; there was no consideration for its surrender, therefore the rights of the bank were not prejudiced thereby. And so far as appellant was concerned, there is nothing in the record to show that he knew when he purchased the sawmill that the deed of trust had been surrendered by the bank to Bowen; in other words, that he had been misled in any way by that fact. We think, therefore, that the surrender of the deed of trust by the bank to Bowen under the circumstances did not in any wise alter or affect the rights of the parties.
Appellant contends further that the court erred in admitting in evidence the deed of trust in question. This question arose in the following manner: Appellee introduced the facts agreed on between the parties, which were embodied in a stipulation in writing, and then introduced, over appellant's objection, the deed of trust, which was admitted by the court. This action of the court admitting in evidence the deed of trust was excepted to, and is argued here as error. As we view it, the deed of trust was the foundation of appellee's case. It took the deed of trust and the agreed facts to make out the case for appellee. There was nothing in the agreed facts by which it was stipulated between the parties that no record evidence or writings of any kind having a bearing on appellee's case should be introduced. We think the deed of trust in evidence was pertinent and necessary in order to properly develop the case on trial, and there was no error committed therefore in admitting it.
Affirmed. *510
