Gray v. Helm
Gray v. Helm
Opinion of the Court
delivered the opinion of the court.
' The first clause of the trust-deed clearly secured all future advances of whatever description, without regard to their date, and brought the case fairly within the principle announced in Witzinski v. Everman, 51 Miss. 841, to-wit: That such a mortgage, when recorded, operates to secure the mortgagee against the claims of third persons in whatever advances are made under it, whether before or after the maturity of the principal debt secured. But for the last clause of the instrument it is clear that the attaching creditor must be postponed until every valid debt due the mortgagee has been satisfied. That clause is in these words : “ It is further distinctly understood and agreed between the parties aforesaid that this deed is made and intended to secui’e any advances on account of the crop of 1880, made after the maturity thereof and not mentioned therein.”
These bonds must be held to limit advances, after maturity of the principal debt named (1st of November), to such as should be “ made on account of the crop of 1880,” and as excluding all post-maturity advances which were not of that character. It is impossible to give them any force or meaning except upon this theory. Without them all advances, whether made before or after maturity, and whether on account of the crop or not, were alike protected. The last clause, therefore, could not have been inserted to enlarge an instrument which needed no enlargement, but rather as a limitation of that which without it was too general and all-embracing. By it the post-maturity advances are restricted to such as are directly connected with the growing, gathering, and handling of the crop, and all others are excluded. The court below adopted this construction and excluded advances made after the maturity, and which consisted in paying off various debts due by the mortgageor to other persons.
These payments were made at the request of the mortgageor, and the original consideration of the drafts was mules and provisions bought for and used in making the crop ; but it was
We think that the court below held the trustee to a responsibility too rigid in declaring that it was his duty to have sold the mules covered by the mortgage on the tenth day after they were delivered to him, and in allowing him for the expense of feeding them for that length of time only. The interests at stake were large, the attachment was sudden, and some time should have been allowed the trustee for looking into the attachment, for- consultation with the cestuis que trust, and for determining on his own course. He might, we think, well be allowed ten days for these purposes and a like period for advertising under the trust-deed. If remittitur on this basis is entered here the judgment will be affirmed, otherwise it must be reversed.
Reference
- Full Case Name
- F. S. Gray v. Thomas E. Helm
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- 1. Deed or Trust. On growing crops and personalty. To secure future advances. Validity and construction thereof. On the 3d of May, 1880, M. executed a deed of trust reciting an indebtedness on his part to H. & L. on a promissory note, and that “ whereas, said party of the first part expects said H. & L. to advance him money, supplies, and merchandise during the year 1880; and whereas, said party of. the first part has agreed to secure the payment of said note, as also any further amounts that may be advanced as aforesaid and not mentioned herein, the party of the first part, in consideration of the premises, as well as of 510 to him paid by G-., trustee, hereby bargains, sells and conveys to said trustee the following described property situated in Hinds County, Mississippi, viz.: his entire crop of cotton and corn raised by him and hands he may employ during the year 1880 on land belonging to himself, or on any other land they may cultivate during said year; also any and all cotton and corn that may be due said party of the first part as rent for said year; also all stock now owned by said party of the first part, and used on the Whitaker and1. Watson places. It is further distinctly understood and agreed between the-parties aforesaid that this deed is made and intended to secure any advances on account of the crop of 1880 made after the maturity hereof, and not mentioned herein.” The debt secured by the deed of trust was to mature on the-1st of November, 1880. This deed of trust, after being duly recorded, operated as against creditors of M., to secure all advances made by H. & L. before the maturity thereof; but it covered only such advances made after its. maturity as were directly connected with the growing, gathering, and handling of the crops. 2. Same. Payments not covered thereby. Case in judgment. In the case above stated drafts were drawn by third persons on M., for the price' of mules and provisions sold prior to the maturity of the deed of trust, and partly before its execution, by such persons to M., and used by him in making the crops of 1880. These drafts were paid by H. & L. after the maturity of the trust-deed, upon the request of M.; but it did not appear by the proof that they had any connection with the purchase of the mules and provisions for which the drafts were drawn, nor that they ever knew of such purchase till after the maturity of the trust-deed. Held, that the payments on these drafts were not covered by the deed of trust. > 3. Same. Sale by trustee. Time allowed for advertising and other purposes. Expense of keeping stock. The court instructed the jury in the case above stated, in effect, that it was the duty of the trustee to have sold the mules and horses on the tenth day after he took possession of them, that time being necessary for giving the required notice of sale, and that they should allow him for the expense of feeding the stock only for that length of time. Held, that this instruction was erroneous. The interests at stake being large, and the attachment sudden, the trustee should have been allowed ten days for investigating the attachment, for consultation with the eestuis que trust, and for determining his course, and a like period for advertising the notice of sale.