Jones v. Hyman Mercantile Co.

Mississippi Supreme Court
Jones v. Hyman Mercantile Co., 134 Miss. 275 (Miss. 1924)
98 So. 845; 1924 Miss. LEXIS 268
Cook

Jones v. Hyman Mercantile Co.

Opinion of the Court

Cook, J.,

delivered the opinion of the court.

The appellee, Hyman Mercantile Company, filed its bill in the chancery court of Franklin county against the appellants, seeking thereby to secure a personal decree against the appellants for a balance claimed to be due for goods, wares, and merchandise sold to them during the years 1917,1918,1919, and 1920, and for the satisfaction of such decree, to enforce the lien of a certain deed of trust executed by appellants in favor of appellee on *279January 20,1917, and also certain vendor’s liens reserved in contracts for the conditional sale of certain personal property purchased from appellee hy P. I. Jones, one of the appellees. The chancellor entered a decree adjudging that appellants were indebted to appellee in the sum of one thousand and seventy-three dollars and seventy-one cents, and that by virtue of said deed of trust the appellee had a lien on the real estate described in said deed of trust, and also additional liens on certain personal property by virtue of the said conditional sale contracts, and ordering the said real estate and personal property sold for the satisfaction of the indebtedness, and appointing a commissioner to make the sale, and from this decree appellants prosecuted this appeal.

The facts as disclosed by the record are substantially as follows: On January 20, 1917, the appellants, P. I. Jones and wife, executed a deed of trust to the appellee to secure a promissory note for one hundred and fifty dollars, and also to secure money to be advanced and supplies to be sold to appellees during the year 19 — , “the amount of money and the quantity and kind of supplies and merchandise to be determined” by the appellee. The deed of trust covered the homestead of appellants, and also certain personal property, and provided that it should he void if the appellees paid on October 1, 1917, all indebtedness due by them to appellee. There was a further provision that the deed of trust was made and intended to secure any advances made after the maturity thereof.

The appellants continued to purchase supplies from appellee until about the end of the year 1920, when appellee demanded a new deed of trust on the homestead of appellants to secure the balance then claimed to be due it. Mrs. Littia Jones, the wife of the appellant, P. I. Jones, refused to sign this deed of trust, and thereupon this bill of complaint was filed seeking, among other things, to foreclose the deed of trust which had been exe*280c'uted in 1917. Tlie bill charged that the 1917 deed of trust was intended to be “a continuing security from year to year as long as the parties thereto should see fit to do business thereunder;” that the said deed of trust was a “continuing security for all indebtedness incurred by the parties thereunder, whether the same was incurred prior to October 1, 1917, or not, and this is true, notwithstanding the mistake made in preparing the deed of trust;” that the words and figures, “Oct. 1/17,” were inserted in said deed of trust by inadvertence and mistake, when in accordance with the intention and agreement of the parties the words should have been ‘ ‘ October 1st of each year; ’ ’ that without correction, however, the deed of trust was intended to he and is a “ continuing security for all indebtedness incurred by the defendants thereunder, whether made before or after October 1, 1917, or whether made during the year 1918, or the year 1919, or the year 1920, and all the parties thereto treated it as such security, and the said defendants continued to buy supplies under the said deed of trust and continued to ask for and obtain credit thereunder during all these years.”

The defendant interposed a demurrer to the whole bill, which was overruled, and then they filed a demurrer to such parts of the bill as sought to impress and foreclose a lien on the 'land described in the bill and deed of trust, and this demurrer was likewise overruled. The defendants then filed an answer denying the averments of the bill of complaint, and the cause was heard upon the pleadings and proof, and a decree as hereinbefore set forth was entered.

P. I. Jones, one of the appellants, testified that in the first part of the year 1918 he paid his account and the one hundred and fifty dollar note secured by the deed of trust, and that Mr. Hiller, appellee’s bookkeeper, delivered’the note and deed of trust to him; that this bookkeeper then stated to him that “if you expect to trade *281another year the deed of trust is only on the crop; let me have it back, and it will save you one dollar and twenty-five cents,” the recording fee; that, believing the deed of trust only affected the crops thereafter, he told the bookkeeper that this arrangement was satisfactory to him, and then he gave the deed of trust back to Mr. Hiller. This testimony that the indebtedness was fully paid and the deed of trust surrendered during 1918 is undisputed. The only testimony for the appellee on the point was that of W. M. Davis, appellee’s general manager, who testified that when P. I. Jones purchased a wagon on October 15,1918, he asked Jones if he had fixed up his papers, and that he replied: “I am just leaving the old papers there, and they are good for another year;” that he investigated the matter and found that the old deed of trust was in the possession of the company, and that on two other occasions when the appellant, Jones, was making purchases, Jones stated to him that he need not be uneasy, as the indebtedness was fully secured by the old papers.

Construing all the provisions of this deed of trust together we think it amounted only to security for the indebtedness incurred and advances made during the year 1917 and, since the testimony is undisputed that this indebtedness was fully paid and the deed of trust delivered to one of the grantors, the lien thereof was extinguished, and the title revested in the grantors, (section 2782, Code of 1906 [section 2286, Hemingway’s Code]), and the redelivery of the instrument to the appellee by this grantor did not inject life into it so as to create an enforceable lien on the homestead of the grantors. The decree of the court below will therefore be reversed, and the bill of complaint dismissed, in so far as it attempts to impress and enforce a lien on the land described in the bill; in all other respects the decree will be affirmed.

Affirmed in part, and reversed in part.

Reference

Status
Published