51 Miss. 841 | Miss. | 1876
delivered the opinion of the court.
On the 4th of March, 1872, Storms & Bass executed a mortgage to secure Ever man & Go., the promissory note of Storms & Bass for $350, payable 1st of October, 1872, with ten per cent, interest from date, and two and a half per cent, for advancing, and as a security for “ the prompt payment of all other indebtedness which may be incurred by said parties of the first part (Storms & Bass), or either of them.” The condition of the mortgage is, that it shall be void, “ if said promissory note ($350) and all other indebtedness of said parties of the first part, or either of them, shall be promptly paid, but upon the failure to so pay said promissory note and other indebtedness, or to perform the agreement hereinafter made, the parties of the second part have full right,” etc. The property conveyed by the mortgage is “ all the crops of cotton, corn or other agricultural product now being produced, or that may be produced within fifteen months from the date hereof,” by the mortgagors or either of them, and the mortgage stipulates for the delivery by the first day of October, 1872, of a sufficiency of said crop of cotton to cover all indebtedness to that date, and that the mortgagors shall gather and prepare for market as soon as the same can be done, the whole crop of cotton which may be produced by them Muring the ensuing
Everman & Co., from time to time, during 1872, made advances under the mortgage to the amount of upwards of $900, and received on the mortgage cotton and its proceeds, to the amount of $797.25, leaving a balance due them, on the current dealings, of $173.50. Five bales of cotton, yielding $340.90 net, were received by Everman & Co., early in October, 1872, and the remainder later. Part of the indebtedness of the mortgagors accrued prior to 1st of October, 1872, and part afterwards.
In December, 1872, Storms & Bass sold a bale of the cotton, covered by said mortgage to Witkowski & Witczinski, who paid them cash for it, and Everman & Co., learning the fact, demanded the cotton or its value of such purchasers, which demand being refused, Everman & Co. exhibited this bill to hold them accountable as trustees for the value of said cotton, which had been sold by them. Said purchasers had no actual knowledge, at the time of their purchase of said cotton, of the state of dealings between Storms & Bass and Everman & Co., and at the time of said purchase, Everman & Co. had received cotton sufficient to more than pay them $350, from Storms & Bass.
The foregoing are the facts of this case, as made by the pleadings, and are not varied by the evidence.
The contest in the court below was, and is here, whether the
The evidence shows that the money paid by Witkowski & Witczinski for the bale of cotton purchased by them, was for the most part paid to cotton pickers, who were laborers in making this crop, and entitled to a lien on the cotton, and it is urged that the court shall consider of this as affecting the rights of parties, but the answer to this suggestion is, that there is nothing in the pleadings to which this evidence applies, and therefore no question can arise upon it for our consideration. If there was such an issue between the parties, the fact .that the mortgage in this case was executed and filed for record before the date of the law giving laborers a lien would perhaps render the claim of a lien in favor of laborers unavailing as against the mortgage.
Is a mortgage to secure a sum stated, and “ all other indebtedness which may be incurred ” by the mortgagor to the mortgagee valid as an incumbrance from its date, as against a purchaser of the mortgaged property, for indebtedness incurred under it after the date of the mortgage, and before such purchase ?
Is such mortgage a valid incumbrance from its date as against such purchaser for indebtedness incurred under it after such purchase ?
We propound both questions, because in this case, while nearly all of the indebtedness of the mortgagors incurred under the mortgage was before the purchase of the cotton by Witkowski & Witczinski, some of it was created afterwards.
There has been much diversity of views between courts and law writers on the question of the validity of mortgages for future advances, and the rights of mortgagees in such mortgages as against purchasers and junior incumbrancers of the mortgaged property. Some have held that a mortgage which does not specify that for which it is given so distinctly as to give definite information on the face of the mortgage, of what it secures, so as to
In the case under consideration, the mortgage, which was duly filed for record, sufficiently informs all persons pursuing it that it was to cover all indebtedness of the mortgagors to the mortgagees, beyond the sum of $350, for which the note was given, and was sufficient to put persons upon inquiry, and an application to the mortgagees would have resulted in positive information of the amount for which the mortgage was held. Robinson v. Williams, 22 N. Y., 380; Stoughton v. Pasco, 5 Conn., 442.
The mortgage was valid as security for all the indebtedness of Storms & Bass, or either of them, and Witkowski & Witczinski, in purchasing the cotton covered by the mortgage, took it cum enere, and are trustees invitum of it or its proceeds, and liable to account therefor to Everman & Co.
The decree of the chancellor is in accordance with these views, and is therefore affirmed.