No. 22043 | Miss. | Oct 15, 1921
delivered the opinion of the court.
(After stating the facts as above). Two questions arise, the solution of which goes to the root of and settles the whole controversy in this case, making it unnecessary to consider the other questions argued by counsel; and they are: First, whether by virtue of our sign statute (Code of 1906, section 4784; Hemingway’s Code, section 3128 — part of the statute of frauds) under the facts of this case, the funeral car involved was freed from appellant’s mortgage,
The court has held in several cases that this sign statute had no application Avhatever to any kind of business, except that of merchants and traders and persons ejusdem generis. Yale v. Taylor, 68 Miss. 598" court="Miss." date_filed="1891-04-15" href="https://app.midpage.ai/document/greaves-v-atkinson-7987029?utm_source=webapp" opinion_id="7987029">68 Miss. 598; Lyons v. Steele, 86 Miss. 261" court="Miss." date_filed="1905-04-15" href="https://app.midpage.ai/document/lyons-v-solomon-s-steele--co-7989353?utm_source=webapp" opinion_id="7989353">86 Miss. 261, 38 So. 371; Oliver v. Ferguson, 112 Miss. 521" court="Miss." date_filed="1916-10-15" href="https://app.midpage.ai/document/oliver-v-ferguson-7992606?utm_source=webapp" opinion_id="7992606">112 Miss. 521, 73 So. 569.
It Avas held in Smith v. Perkins, 112 Miss. 870" court="Miss." date_filed="1916-10-15" href="https://app.midpage.ai/document/smith-v-perkins-7992651?utm_source=webapp" opinion_id="7992651">112 Miss. 870, 73 So. 797, under chapter 90, LaAVs of 1916, requiring each dealer in coffins, if an undertaker, to pay a privilege license of one hundred dollars, but providing that a merchant carrying coffins in stock and paying a privilege tax on the stock shall pay a tax of five dollars in addition to the tax required of him as a merchant; that where the merchant carries a stock of coffins in addition to his other stock and takes charge of dead bodies and prepares them for burial, he cannot escape the one hundred dollars privilege tax re-tiñir ed of an undertaker. The court said that the business of an undertaker was a distinct profession; that the undertaker took charge of the corpse and prepared it for burial and attended to its interment, Avhich Avas an entirely separate and different business from that of a merchant dealing in coffins. And in Orr v. City of Jackson, 115 Miss. 140" court="Miss." date_filed="1917-03-15" href="https://app.midpage.ai/document/orr-v-jackson-jitney-co-7992895?utm_source=webapp" opinion_id="7992895">115 Miss. 140, 75 So. 945" court="Miss." date_filed="1917-03-15" href="https://app.midpage.ai/document/turner-v-crane-7992894?utm_source=webapp" opinion_id="7992894">75 So. 945, it Avas held that, where a jitney car company was engaged in operating automobiles and taxicabs for hire and also engaged in trading in automobile supplies and accessories, and acquired a jitney bus and used it in its business of operating automobiles for hire, such bus did not come Avithin the provisions of section 4784, Code of 1906 (section 3128, Hemingway’s Code), the business sign statute, making property used in the business of a merchant or trader liable to creditors if a business sign is not displayed as required by said statute; and that the lien of the judgment creditor in that case- was postponed
We are of the opinion that the last case above is decisive of the question here involved. The business of an undertaker is not the business of a merchant or trader. It would come nearer being a profession than a trade. An undertaker sells nothing except his skill in preparing dead bodies for burial and attending their interment.
It may be conceded for the purpose of this decision that the mortgage in question is void because the hearse was not properly described therein^ and, furthermore, that it was not entitled to be recorded because not properly acknowledged, and for the further reason that the acknowledgment was not properly attested by the notary public taking it, and still it was an equitable lien on the hearse because the law is that where an abortive attempt has been made to give a mortgage, still it will be given the effect and operation of a mortgage in equity, and, like other equities, is maintainable, not only against the grantor in such mortgage, but as- against all others, except innocent purchasers for value without notice. The applicable principle is that equity considers that done which ought to be done. 19 E. C. L., pp. 273, 274, 275, sections 44, 45. Among other things, it is stated in this authority in section 45 that this principle applies to writings Avhich are incapable under the law of having the effect of a mortgage because of the absence of a seal; in cases of defective registration; insufficient attestation, and irregular acknowledgment — even when those formalities are made essential by statute as a part of the due execution of the instrument.
Reversed and remanded.