Hooker v. Sutcliff

71 Miss. 792 | Miss. | 1894

Cooper, J.,

delivered the opinion of the court.

We are unable to concur in the result reached in this case. We can see nothing in the mortgage, and nothing done under it, upon which to rest the finding, necessarily involved in the judgment, of fraud in fact or in law. The security did not cover the stock of merchandise owned by Hllendorff, and it remained at all times subject to the demands of his creditors. So much of the mortgage as relates to the book accounts and notes is either confined to those which might become due from the tenants and employes of Hllendorff on the plantations, the crops of which were conveyed by the deed, or else the provision is ineffectual for want of certainty in their description. Hllendorff was the lessee of a number of farms, and the owner of tile stock and implements thereon. The manifest purpose of the conveyance was to give security upon the personal property then on these farms and the crops to be grown thereon during the year, and. upon the sums that might be due to the grantor during the year from those engaged by him in and about the business of making such crops. It is true that Ullendorff was also the owner of a small stock of goods, and was engaged, to a limited extent, in business as a merchant. But the property invested in that business was not covered by the mortgage; and to hold that the “book accounts” referred to in the mortgage were those which should accrue in the mercantile business, would be doing violence to the evident purpose of the parties. But the effect of disassociating these words from the planting operations and applying them to any and all accounts which might become due to the grantor during the year, would be to render this provision nugatory by reason of its generality and want of definiteness, and this would avail nothing in support of the judgment of the court below; for, since no “'book accounts” would, under this construction, pass by the deed, the collection and use of them by Ullendorff would not be a dealing by him with the mortgaged property, and such action on his part could not illustrate the character of the mortgage, of which they formed no part.

Aside from the collection of the account and use of the money so collected by Ullendorff, the other grounds of attack upon the mortgage are: (1) That Levy & Sons permitted Ullendorff to ship to the Union Oil Mill the seed of the cotton grown on the places, and to apply the proceeds in part to a debt due said mills; (2) that the corn grown during the year and covered by the mortgage was used, before the attachments were sued out by other creditors, in feeding the stock upon the places; and, (3) that after the attachments had been levied on the property, the trustee of Levy & Sons executed forthcoming bonds therefor, and afterwards, and without a sale having been made, turned the mules and corn over to Mrs. Ullendorff, by whom the corn had been consumed and the stock constantly used.

There is nothing in either or all of these things of which creditors can justly complain. Surely it cannot be contended that one creditor is defrauded because the mortgagee waives his lien upon specific property in favor of another creditor whose debt is equally meritorious as that of any other creditor. No harm was thereby done to the plaintiffs, whose claim was not more just than that of the creditor whose debt was paid by the sale of the seed. They had no lien upon the seed, and no right of theirs was diminished or impaired by the waiver of their lien by Levy & Sons or by the sale by Ullendorff.

The second objection above noted in not tenable. If the . trustee had been in possession of the stock and corn it would have been his duty to have used the corn in the maintenance and preservation of the stock. It is not shown that an improvident or unnecessary use of the corn was made, and that which was done was but in accord with the universal custom of all owners of property of like description.

The disposition made by Levy & Sons of the property, after they had given bond for its forthcoming to answer the demands of attaching creditors, cannot serve to impair or defeat the mortgage under which they claim. The bond stands in lieu of the property as to these creditors, for, upon judgment in their favor, Levy & Sons must return the property or pay its value as found by the jury.

The judgment is reversed, and cause remanded.