Newburger & Korg v. Perkins ex rel. Perkins

Mississippi Supreme Court
Newburger & Korg v. Perkins ex rel. Perkins, 62 Miss. 584 (Miss. 1885)
Cooper

Newburger & Korg v. Perkins ex rel. Perkins

Opinion of the Court

Cooper, J.,

delivered the opinion of the court.

The deed of trust executed by Perkins and wife to secure the debt due to Eskridge and the advances to be afterward made by him to them contained an express stipulation that Eskridge should be permitted to apply any payments made to him by the debtors, or the proceeds of any of the mortgaged cotton to the extinguishment of any sums which at any time might be due on open account *586from them to him, thus diverting the proceeds from the satisfaction of the mortgage debts. There was nothing unlawful in the contract thus made; and though without it the proceeds of the mortgaged property would have been by the mortgage itself appropriated to the debt secured, it was competent for the parties to provide for a different application. Having done so, the contract is to control.

The other questions upon which counsel for appellants desires an expression of our views are not presented by the record.

The decree is reversed and cause remanded.

Reference

Full Case Name
Newburger & Korg v. Hugh J. Perkins, by next Friend, F. V. Perkins
Status
Published
Syllabus
Deed of Trust. Stipulation for diversion of payments. Case in judgment. Where it is stipulated in a deed of trust upon land and cotton to secure a specified debt that the cestui que trust may apply any payments in money or the proceeds of any cotton delivered to him to the satisfaction of the debt secured, or “to the payment of any indebtedness which may be now due or •which may hereafter become due to him upon open account,” by the grantor, as he may elect, such stipulation is valid and may be carried out according to its terms by the cestui que trust.