Opinion
No. 31798.
September 23, 1935.
1. EVIDENCE.
Where property sought to be conveyed by mortgage was described as "Fish and Poultry Display case complete, # 5018," parol evidence was inadmissible to show that serial number was intended to designate particular display case.
2. CHATTEL MORTGAGES.
Description of property sought to be conveyed by mortgage as "Fish and Poultry Display case complete, # 5018," held void, where it did not appear that serial number was intended to designate particular display case, and mortgagee was not entitled to recover display case from purchaser at bankruptcy sale.
3. APPEAL AND ERROR.
Where description of mortgaged property was void because insufficient and record presented no other facts for jury's determination which could affect right of purchaser at bankruptcy sale to recover, Supreme Court reversed judgment for mortgagee and entered final judgment for such purchaser (Code 1930, section 704, as amended by Laws 1932, chapter 256; section 3378).
APPEAL from circuit court of Forrest county.
HON.W.J. PACK, Judge.
Action by Ed Friedrich against National Foods, Inc. From a judgment for plaintiff, defendant appeals. Reversed and rendered.
Heidelberg Roberts, of Hattiesburg, for appellant.
There can be no doubt in the writer's mind but that the description as set forth in the contract referred to is an improper description. It is impossible to determine how many display cases have been transferred. It is impossible to determine the height or length of said display case from the description. It is also impossible to determine the make, or manufacturer of the display case.
7 Cyc. of Automobile Law Practice, 1934 Edition, page 314; Walker v. Fitzgerald, 196 N.W. 269, 157 Minn. 319; Valley Security Co. v. Stafford, 8 La. Court of Appeals, 607.
Description of property in deed of trust must be sufficient to separate and distinguish property from any other of like kind.
Garmon v. Fitzgerald, 151 So. 726, 168 Miss. 532; 5 Elliott on Contracts, para. 4779, page 919; In re Caver Co., 42 F.2d 293, 1 F. Supp. 18; Kelly v. Reid, 57 Miss. 89; Nicholson v. Karpe, Trustee, 58 Miss. 34; Allen, Trustee, v. Dicken, 63 Miss. 91; Leffel v. Miller, 7 So. 324; Tinnin v. Brown, 98 Miss. 378, 53 So. 780; Sections 526 and 527, Code of 1930.
All of the written evidences of the claim of Ed Friedrich as introduced by the plaintiff in replevin were improperly identified and improperly admitted by the court in the record.
The burden was upon the plaintiff in replevin to show that there was a valid and binding contract existing between the parties originally executing same; that the defendant either had actual or constructive notice of the existence of said contract and claim of the said plaintiff in replevin; that the grantor in the contract had breached the same, and that the contract in itself under said breach, as shown, was in such form as to permit him to maintain a possessory action as against the third party to the property in question.
Buck, Agent, v. Payne Raines, 52 Miss. 271.
The burden is upon the mortgagee, where he is maintaining a replevin suit, to show that ownership was in the grantor at the time of the execution of the instrument to the mortgagee.
Wilkes v. Gates, 68 Miss. 263, 8 So. 847; Bowman v. Roberts, 58 Miss. 130; Morris v. Rucks, 62 Miss. 76.
It is the law in this state that a deed of trust or mortgage which conveys the debtor's stock of merchandise then on hand or merchandise that may thereafter be purchased for sale in the debtor's store and which gave the debtor the right to retain possession of the said property is void.
Balkman v. Lyell, 89 Miss. 197, 42 So. 799; Ellis Jones v. Coker, 151 Miss. 102, 117 So. 545; Coffeeville Bank v. Stone et al., 118 So. 413; Tallman Co. v. Tuttle Bros., 65 Miss. 492, 4 So. 553; Wright v. Weissinger, 277 Fed. 514.
We desire to call the court's attention to the fact that the particular merchandise in question here was in the place of business of the Forrest Stores Corporation operating under the sign of "Pigley-Wigley" at the time of its adjudication in bankruptcy; that there was no sign on the property to show that it was owned by someone else, and that if there had been a sign thereon, still, insofar as creditors or third parties are concerned, the property would be considered to belong to the individual who was operating the place of business.
Shannon v. Blum, 60 Miss. 828; Loeb Blum v. Morton Co. et al., 63 Miss. 280; Paine v. Hall Safe Lock Co., 64 Miss. 175; Louisiana Oil Corp. v. Robbins, 152 So. 846; In re Matheny, 57 F.2d 330; In re Waynesboro Motor Co., 60 F.2d 668; In re Huber Motor Co., 1 F. Supp. 574.
F.M. Morris, of Hattiesburg, for appellee.
It would be utter folly to undertake to argue that Ed. Friedrich would be bound by any action of the bankrupt court unless he were made a party to that proceeding in the legal manner.
11 U.S.C.A. 94.
Where the contract which, by the seller of a chattel, reserved title thereto until paid for was recorded, it is valid against the creditors of the purchaser; such claim not being within the class announced by Code of 1880, paragraph 1300, providing that all property used in the business of anyone shall be liable for his debts and be treated as his property in favor of creditors.
Gayden v. Tufts, 10 So. 53, 68 Miss. 691; Tufts v. Stone, 11 So. 792.
While the trader must unite in himself title and possession of property used in his business, he may surely encumber the same by mortgage; and with the instrument acknowledged and recorded, his mortgagee must not be stripped of his rights under the mortgage.
Dobbs v. Pratt, 64 Miss. 123, 8 So. 167; Fitzgerald v. American Mfg. Co., 114 Miss. 580, 75 So. 440.
It is manifest that the above decisions clearly hold that the business sign statute does not operate to give other creditors a prior right to the seller of personal property to a trader when that seller does either of two things, either reserves title in himself until the purchase price is paid, or encumbers it by mortgage to the seller to secure the payment, and that mortgage placed of record.
The testimony in this case shows that fish and poultry display cases are numbered consecutively, that no better method on earth could be found to distinguish and nominate and to point out a particular case than to designate it by the one thing that distinguishes it from all of the others — its number.
When the right to possession accrues as stipulated in the mortgage, replevin in law will lie.
Buck v. Payne Raynes, 52 Miss. 271.
The mortgage gave the absolute right to possession in the mortgage upon the default and the property was in the possession of a third person to said contract, between whom there were no contractual relations, and for these reasons, our court has held that no demand was necessary.
Bowman v. Roberts, 58 Miss. 130; Morris v. Rucks, 62 Miss. 76; Hood Tire Corp. v. Breland, 157 So. 303.
In at least three decisions of the Supreme Court of this state it has been held consistently that the business sign statute did not apply to a retained title contract executed for the purchase money or a mortgage upon the fixtures when that mortgage was duly placed of record.
This is an action of replevin by the appellee to recover from the appellant a fish and poultry display case. It was begun in a county court, and from a judgment there for the appellee, was appealed to the circuit court and there affirmed. It was tried in the county court without a jury.
Such a display case was sold by the appellee to one Messer, who used it in a meat, fish, and poultry market he was operating in a grocery business. Some time after receiving the case, Messer moved it to the place of business of the Forrest Stores Company, which was also engaged in the grocery business, and there operated a meat, fish, and poultry market. Messer afterwards discontinued this market, but left the case in the apparent possession of the Forrest Stores Company, which afterwards went into bankruptcy, and its trustee sold the display case to the appellant.
A number of interesting questions are presented by the record, but the one which lies at the threshold, if decided against the appellee, will preclude his right of recovery irrespective of the other questions presented.
When Messer purchased the display case, he executed a mortgage to Friedrich to secure an unpaid portion of the purchase money. The description of the display case in the mortgage is as follows: "The following described personal property situated in Forrest County, State of Mississippi, namely, 1-5' Fish and Poultry Display case complete, # 5018." A metal strip attached to the case had the figures "5018" stamped on it.
We will assume, as the appellee claims, that this description means "one five foot fish and poultry display case, complete, number 5018." Is this description of the property intended to be conveyed by the mortgage sufficient?
We are not here concerned with the sufficiency of the description of the property intended to be conveyed by the mortgage between the parties thereto, and therefore express no opinion thereon.
"While it is true that it is difficult, if not impossible, to describe in a mortgage this species of property, so as to determine with certainty whether any particular property of that class is that embraced in the mortgage, without resorting to evidence aliunde, yet the mortgage must mention some fact or circumstance connected with the property which will serve to distinguish it from all other property of the same kind. This fact or circumstance must be stated in the mortgage itself, it cannot be proved by parol evidence without thereby adding to the mortgage a term not contained in it. When thus stated, its existence in connection with the property may be established by extrinsic evidence. . . . If the description . . . be so vague and uncertain as necessarily to apply equally to all property of that kind, then it is clear that there can be no identification of it, without proving some fact or circumstance connected with the property not referred to in the mortgage." Kelly v. Reid, 57 Miss. 89; Garmon v. Fitzgerald, 168 Miss. 532, 151 So. 726.
Without the number of the display case the description of it would undoubtedly not be sufficient. Authorities, supra; Allen v. Dicken, 63 Miss. 91; Nicholson v. Karpe, 58 Miss. 34; Leffell v. Miller (Miss.), 7 So. 324, and the number does not make it so unless it separates the case from all other cases of like kind. This it does not do, for aught that appears in the mortgage that number may be common to all other such cases.
It may be, as the oral evidence indicates, that the case was manufactured by Ed Friedrich; that his name as the manufacturer was stamped thereon, and that the number "5018" is his serial number intended to designate this particular display case. Nevertheless that fact is not disclosed by the mortgage and cannot be added thereto by parol. Cf. Valley Securities Co. v. Stafford, 8 La. App. 607. In Houston v. W.W. Totten Bro., 1 Miss. Dec. 244, the description of the property intended to be conveyed by a deed of trust was: "One twelve-horse-power engine and boiler, and one No. 10 inspirator and piping and belting." The court, in holding the description void, made no special reference to the inspirator.
The description of the property intended to be conveyed being void, the appellee is not entitled to recover it. The circuit court, therefore, should have reversed the judgment of the county court.
Section 704, Code 1930, as amended by chapter 256, Laws 1932, provides that on appeal from the county court to the circuit court, "If prejudicial error be found the circuit court shall reverse, and shall enter such judgment in the manner and against like parties and with like penalties as is provided in reversals in the Supreme Court, provided that if a new trial is granted the cause shall be remanded to the docket of the Circuit Court and a new trial be had therein de novo."
Section 3378, Code 1930, provides that on appeal to the Supreme Court, "in case the judgment, sentence, or decree of the court below be reversed, the Supreme Court shall render such judgment, sentence, or decree as the court below should have rendered, unless it be necessary, in consequence of its decision, that some matter of fact be ascertained, or damages be assessed by a jury, or where the matter to be determined is uncertain; in either of which cases the suit, action or prosecution shall be remanded for a final decision."
The description of the property in the mortgage being void, and the record presenting no other matter of fact necessary to be ascertained by a jury which could affect the appellant's right of recovery, the circuit court should have rendered a final judgment in its favor. Hairston v. Montgomery, 102 Miss. 364, 59 So. 793, 795; The Y. M.V.R.R. Co. v. Pope, 104 Miss. 339, 61 So. 450; Scottish Union National Insurance Co. v. Warren-Gee Lumber Co., 104 Miss. 636, 61 So. 310; Hines v. Cole, 123 Miss. 254, 85 So. 199; Davis v. L.N. Dantzler Lumber Co., 126 Miss. 812, 89 So. 148; Witherspoon v. State ex rel. West, 138 Miss. 310, 103 So. 134; Hattiesburg Chero Cola Co. v. Price, 143 Miss. 14, 108 So. 291. Cf. Holloway v. Jordan, 170 Miss. 99, 154 So. 340.
Reversed, and judgment here for the appellant.