Jones v. Hyman Mercantile Co.
Jones v. Hyman Mercantile Co.
Opinion of the Court
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
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
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
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.
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