*1 289 charged principal obligation an a because as incident to fund, The neither A nor B each sum. owe other such deposit appeal, a in after character as court. retains its adjudication right partakes An not at thereto all personal judgment except against in aof other, may adjudged matter be in the of costs which discretion of the court. unavailing argue Code
It therefore that is judgments provides all Section shall bear judgment contemplated the sort of interest. This judgments per thereby in for the statute was directed against judgment debtor sonam which became liens thereby process by exposed 30 are execution. Am. Judgments, Interpleader, 27. Black on Jur., Section See (2d) 1912B, Ann. 983; Annotation, Cas. Section Ed., 1005. judgment
Although as the circuit was, court against against appellant than rather stated, above judgment proper an incidents of inter- fund, litigation pleader taken into account. The case must be supersedeas, pending appeal still in the was, Appellee open. has not the issue remained court, and by appellant, deprived her of monies owed been Compare other, or creditor. as to the debtor was, neither &M. 601. Miss. Wilkinson, 601, 18 Smedes v. Anderson judgment correct exclude there- will be so The impleaded upon any fund. interest from ordered. So W. v. J. Inc. 13, 1950. Banc. Feb.
In (44 (2d) 412) No. 37263 So. *2 Williams, Sr., North,
Frank T. L. Or. Satterfield, Ewing Hedgepeth, appellant. &
Montgomery appellee. Varnado, & *6 J.
Roberds, *7 September Harper wife M. and his 15, On W. 1947, appellee, a Harper McClintock, the Beola executed to corporation, principal due $500, a note for the sum of bearing until interest from date 1947, December 1, 6% paid. same on The of the also executed the makers note day the for Jackson, trustee, a to T. R. of trust deed improvements covering a lot and of benefit McClintock payment Mississippi, note. to of said Belzoni, secure provision . all “. ‘. a that contained The trust deed or other merchandise, advances, cash, future further and grantor grant- may the or things be of that made value hereby during are this contract the life of herein ors ’ ’ obligation. principal of this as the secured Harpers paid of the sum 1847, the 27, December On on debt. the $500.00 $245.67 Harpers a of trust April executed deed the 1948, 5, On payment lot secure on same the A. M. North Mrs. to Mrs. North date promissory note of the same their
of May payable 1948, the for sum of and $5000.00, 1, due bearing paid. per interest annum from date until 6% April Harpers Also, on the date, 5, the same to wit: property. quitclaim executed to Mrs. the deed to day duly The North trust ex- deed was recorded quitclaim appears been ecuted, but to have deed recorded time some later. April or had 28, McClintock, Inc.,
“On about” 1948, agreement Harpers it an oral agreed which under Harpers $650.00, an of to lend additional sum expected Harper of with which M. to settle a claim W. against growing him, one Mobile Eobinson out by Harper to of The sale Eobinson a stolen automobile. Harpers April Inc., 28, 1948, executed promissory September 1948, 1, a bearing note for $650.00, due paid, per annum but instead interest until 6% dating April note 28 was back to December it dated money by paid a result 2,1947. No McClintock as was note when this transaction until October 20,1948, $650.00 deposited credit in a bank McClintock Mobile Eobinson. September trustee be- 21,
In the meantime, and on gan the Mc- for sale under advertisement of the land at The sale was Clintock trust deed. October purchased ac- which the sum of McClintock for $650.00 cording to the trustee’s deed. pay and costs
Mrs. North offered to his debt McClintock except she then refused, That was debt. $650.00 renewing cause on filed bill this October praying deed be tender that the McClintock trust security note and her cancelled $650.00 *8 superior rights property to claim declared as be the that note. The dismissed bill. Chancellor questions appeal A are on and number of raised this of are some the of the court as to members in accord exception of of the one member However, them. with agreed are that the was court, we Chancellor mani-. being festly (there holding, in error in hold, if he did so opinion record), no in when he had McClintock, that agreement Harper Harper the April on note and took the knowledge
28, did not have of the existence actual quitclaim of the North If McClintock trust deed and deed. knowledge, had error such actual was in the Chancellor dismissing later herein. bill, shown is the such This evidence as to whether McClintock had charged knowledge: actual The McClintock sworn bill knowledge. did have such actual answer McClintock’s notice “Defendant admits he constructive said, that of A. M. of and to North aforesaid deed trust deed acquired that he virtue recordation of same and shortly re- notice after were actual thereof the same April corded”. his note Now, McClintock took $650.00 twenty- April 28. The North deed was recorded trust days prior The transaction. three to note $650.00 admitted time of the “actual notice” to might within that well assumed be answer, his be twenty-three days. if he knew of a witness was asked
As McClintock quitclaim deed of North deed and existence trust replied, sir, “No, and he note, when he took the $650.00 an- in his I of the admission When reminded didn’t”. ’ ‘‘ replied ’. He time later he I knew it a short swer quit- say you about know then asked “You didn’t replied “No, he sir”. and North”, claim deed Mr. testimony on McClintock behalf of all the That was question. the husband was and is L. G-.North Mr. represent engaged He A. M. had been of North. Mrs. charges attorney Harper on some seventeen M. as an W. oc- and was the reason That of automobiles. of thefts by Harper deed trust casion for execution the fact under as to North testified Mr. L. Gr. and deed. the North execution that after He said consideration. office April came his papers McClintock before Harper sitúa- they discussion had a detailed *9 299 Harper jail tion; that time; was in at the McClintock pay money wanted to know how much it would take attorney’s fees, which were the consideration for ex- expressly papers; ecution of the North that he told Mc- quitclaim Clintock Mrs. North had the deed of trust and and he deed, them that Mc- showed and Clintock then would said to “You less than take him, yours pay amount in we North shown if it and that off”, said, will I take than he knew the “Yes, that”; less April April date was between 5th 15th. Now North gave after we that evidence McClintock testified as placed again have heretofore McClintock was not set .out. deny except not in said, the stand. He did what North way general in indicated Now view of we have above. vague- in the answer of McClintock admission testimony as in connection with his answer ness of his actually to the time he knew of the existence of the papers, against positive of North evidence April place of the interview before time and and details to introduce evidence and the failure McClintock 28th, contradicting finding positive, evidence, a such detailed by April actual 28th, have not, that McClintock did opinion, papers knowledge in mani- of the North our is, weight question. festly against the evidence on that applicable Am. it in law, is said 36 As authority, greater array p. 808, Par. “The 234, Jur. ad of the doctrine that is found on side however, subsequent notice of interests do made after vances priority The rule re-an over such interests”. is have p. is Par. 96. 473, in 45 Am. Jur. The rule nounced Mortgages, page in 230, 299, S., in 59 Section stated C. J. general language: rule, “In with the accordance this junior attaching of a lien, the senior after notice of making ordinarily protected mortgagee will not be mortgage given secure under his advances further binding at where he was under no least, advances, such ’’ pronounce- engagement advances. These such to make 300 Gray
ments have v. reference actual notice. Neither Liberty Helm, 60 Allen, 131, Miss. nor Mercantile v.Go. Miss. In a different rule. So. announces mortgage obligated both cases the mort- contract gagees to make However, future advances. the case *10 provision provision. at bar the a for advances was blanket way mortgagee It in no money. bound advance further the to optional purely
Such advancement was McClintock. when the deed was executed Indeed, trust by Harpers September the for on the occasion 1947, money advancing party Neither future had not arisen. oc- in that. The had it mind. testified to McClintock up the for came later. Indeed, casion such advancement apparently agreement the notice Mc- and first to do so, Harper so, when him to was wanted do Clintock had April they agreement five 28, 1948, some had the oral maturity of the amount stated months after the date Harper We think to the trust deed from McClintock. only just equitable. The and the rule is announced $500.00. trust amount in the deed named McClintock any If obligated more. advance to McClintock was given knowledge Harper another had he then had actual property, have de- he should a trust on the same deed having his so, done advances, but to make further clined the security he knew was to the lien second became being adopt mortgaged property. rule as the stated We report just. equitable from the uncertain It is and whether 51 Miss. Everman, v. the of Witczinski case adopted. here from the one rule it announces different original record. the able to find have not been We great- applicable, especially effect is its The rule is by in addition fact that ly strengthened case, in this Harpers had trust deed North of the to the existence property a deed to North to Mrs. executed also prior when McClintock deed, trust covered agreed Harper what- title had no the $650.00 furn’sh between security. rule stated In view of the ever mortgagees, pretermit we of the effect determination of the deed had there no If been second trust deed. knowledge McClintock actual trust second agreed deed when he his advance then $650.00 security therefor Is second deed trust. may We remand the case so that it be deter agree mined whether or not when he had his April Harper Harper’s ment with 28 and took for note knowledge $650.00, had actual of the existence of quitclaim North trust deed or the deed. If so, the North prior security claim is in McClintock’s $650.00 debtedness; if McClintock did not then have such actual knowledge, upon mortgaged property claim then his superior to secure said indebtedness is to the claim of Mrs. North.
Reversed and remanded. part J.,
Lee, took no of this decision case. *11 (dissenting). Alexander, J. majority opinion concededly adopts
The a rule which unjust majority is not and which in line with is the of the courts. The trouble here is that it is out of accord v. 841. Everman, Witczinski Miss. This case authority has been cited as in cases which have followed Mortgages, it. It is cited several times Jones on 8th example minority Edition, rule, as an of the I and think correctly interprets holding it as that this treatise a mort- gage any advances to secure future includes advances during by mortgagee mortgage, the the life of the made obligated he thereunto or not. whether It ac- also curately making interprets the decision as immaterial mortgagee knowledge has the first actual the whether of junior subsequent a incumbrance or a execution sale mortgage property. Mortgages, Jones on 8th 447, 452, 454, 455, 457. Edition, Sections , it adopt announced, If rule Court desires overruling forthright he me a seems to there should that posi- be in a therefore, I would, of the Witczinski case. it not for mv in the result reached were tion concur departure former from our conviction that it a involves subject, that upon I not believe decision and since do ought but that this overruled, the Witczinski case to be consistently impliedly I cannot least been done, has at join majority opinion. in the although prior holding a is The effect of our that making mortgagee security of future taken for the has right security and the advances and retained both such may junior at will a incumbrance advances, to make such security prior right a take over the as cut off such junior mort- case, lien. in Witczinski As stated right (prior) gagee duly mort- “is advised mortgage mortgage gagee the terms of the hold security property may as as to him for such indebtedness con- accrue It is further “if it to him”. stated that enough a a contract it is to to show stand tains may security mortgagee for such indebtedness as parties, dealings is future between the it arise from put purchaser inquiry, incumbrancer sufficient or proper quarter, he can- he make it in if fails to and, purchaser.” (Em- protection aas bona fide not claim ours). phasis concurring). (specially
McGeh.ee, J.O. especial- case, I concur reached in this result junior mortgagee ly if the for the reason that had advised only mortgagee of the fact that he had not the senior *12 junior quit- mortgage, but had taken the also obtained mortgagor property ques- from to the claim deed mortgagor before the was advanced $650 tion mortgagee, property not did become sub- the senior mortgage subsequent ject for the to the senior advance mortgagor parted right, since the had $650 with all property title and interest in the at the time he obtained mortgagee. additional advance from the senior $650 obtaining property by He conld not further encumber provided an additional advance as for under the senior mortgage, right for the reason that he no to encumber property, the title to which he had become divested, mortgagee where such fact known to the senior there- of at the time he made the further advancement.
I think that the case Witczinski v. Everman, Miss. distinguishable is from the case bar at on its facts, my opinion, controlling and, is in the instant case.
Voss v. State.
In Banc. Feb. 1950. (44 (2d) 402)
No. 37289 So.