Howard, Preston & Barrett v. Simmons

43 Miss. 75

• Court: Mississippi Supreme Court
• Decided: May 15, 1870
• Status: Published

Opinion

Tarbell, J.:

On the 7th day of Nov., 1867, Messrs. Howard, Preston & Barrett, merchants, doing business in New Orleans, Louisiana, filed their bill in the chancery court of Rankin county, of which the following is a synopsis:

October 21, 1867, an execution issued from the office of the clerk of the circuit court of Rankin county, upon a judgment rendered in said court, September, 1859, in favor of W. H. Simmons, against Jas. M. Patterson, for $195 18, which execution was placed in the hands of the sheriff of Rankin county, Oct. 80, 1867; and on the same day was levied on a quantity of cotton as the property of defendant, Patterson, execution and sheriff’s return being filed as exhibits; that the cotton levied on is not liable to levy on said execution, but complainants have a prior lien thereon, under the law of Feb. 18, 1867, for the benefit of agriculture; that the cotton raised by Patterson in the year 1867, and was secured to complainants for advances of money and provisions made by them to Patterson, subsequent to Feb. 18,1867, to enable him to purchase stock and other supplies and necessaries to carry on a farm and make a crop during said year, 1867.

The contract _with Patterson giving complainants a prior lien was entered into and executed Sept. 25, 1867, a copy of which is filed as an exhibit, and was registered with the circuit clerk of Rankin county, on the day of its date.

The debt on which the judgment in favor of Simmons against Patterson, in 1859, was rendered, accrued prior to June 1, 1865, and a copy of the record of that judgment is filed as an exhibit. Simmons is not a resident of this state, and the execution is levied by direction ■ of his attorneys, with prayer that Simmons and his attorneys, the sheriff of Rankin county, and Patterson be made defendants; and for writ of injunction, etc., against those parties, to restrain them, etc.; and, that on final hearing the injuction be made perpetual, and the said mortgage lien be foreclosed ; or if mistaken in the relief sought, then for such other and further relief, etc.

Defendant Simmons appeared and demurred to the bill, stating the following causes of demurrer :

1. No equity on face of the' bill. 2. No account of dealings between complainants and Patterson, showing said advances. 8. Evasive, in not showing date of verbal contract for advances, whether before or after Feb. 18,1867. 4. The contract not reduced to writing until the crop had been cultivated, etc., and until after the judgment lien had attached. 5. The reduction of the contract to writing after maturity of crops, was a fraud on the judgment creditor, and a fraudulent attempt to overreach the judgment lien.

The demurrer was sustained and bill dismissed, from which decree complainants bring this writ of error. The following causes are assigned for error:

1. That the court below erred in sustaining the defendant’s demurrer to the complainant’s bill.

2. The court below erred in its decree dismissing the bill.

This case arising under the law approved Feb. 18, 1867, entitled “ An act for the encouragment of agriculture,” our attention will be first directed to an examination of the provisions of this law.

Section 1 provides, “ That all debts hereafter contracted for advances of money, purchase of supplies, farming utensils, working stock, or other things necessary for" the cultivation of a farm or plantation, shall constitute a prior lien upon the crop of cotton, corn or other produce, of such farm or plantation, which is not by law exempt from levy or sale, by virtue of execution, and also on the animals and implements employed or used in cultivating the same, which shall have been purchased with the money so advanced, or which shall have been furnished by such person, in favor of the person or persons so advancing or furnishing as aforesaid, from the time the contract or contracts therefor, or a synopsis of the same, shall be enrolled as hereinafter provided.”

It will be observed that the essential features of this section are:

1st. That the debt shall be contracted subsequent to the passage of the law; 2d. That the debt shall be for advance of money, purchase of supplies, farming utensils, working stock or other things necessary for the cultivation of a farm or plantation; 3d. That a debt thus contracted for money, stock, etc., shall be a prior lien upon the crop of cotton, corn, etc., and also upon the animals and implements employed or used in cultivating the same, which shall have been purchased with the money so advanced, or which shall have been furnished by such person, etc.; 4th. This lien shall be in favor of the person or persons so advancing, or furnishing, etc.; 5th. From the time the contract therefor shall be enrolled, etc.

Section 3 provides, 1st. The mode of enrollment in the office of the clerk of the circuit court of the county in which the farm is situated; 2d. Such enrollment shall be equivalent to notice to all persons of the existence of such lien; 3d. “ Provided, however, that a party agreeing to advance a specific sum during the year, may enroll his contract, • which shall be equivalent to notice of his lien for the full amount so agreed to be advanced, but the lien shall be limited to the amount actually advanced, with the interest thereon.”

Sections 4 and 5 prescribe proceedings to enforce such lien.

Section 6 enacts “ that it shall not be lawful for any sheriff or other officer to levy on or sell by virtue of an execution, or other process, issuing from any court in this state, any crop of cotton, corn or other agricultural product, while the same is under cultivation, and before it is matured and gathered.”

Section 7 declares “ that it shall be lawful to convey by way of mortgage or deed of trust, any crop of cotton, com or agricultural product, being produced or to be produced within fifteen months from the date of such mortgage; Provided-, that nothing in this act shall interfere with any prior lien granted by the provisions of this act, for the supplies and means furnished to grow the crop.” The provisions of section 7 are to be attained by — 1st. A conveyance by mortgage or deed of trust; 2d. The consideration may be for an antecedent debt, or any other lawful consideration ; 3d. The property mortgaged or conveyed is limited to “ any crop of corn, cotton or agricultural product, being produced or to be produced within fifteen months from the date of such mortgage; and 4th. “Provided, that nothing in this act shall interfere with any prior lien granted by the provisions of this act for supplies and means furnished to grow the crop.”

This act is recognized as one of a class which the courts will construe liberally to give effect to the purposes of its enactment. It is entitled, “ An act for the encouragement of agriculture.” The object specified is one worthy of every encouragement, under all circumstances, even in the most favored states. This law was passed at a time when our people were prostrated and impoverished, without means, and without credit. To supply these; to aid the people in undertaking the cultivation of their farms, for the support of their families ; to enable them to contribute to the support of the government, and to increase the wealth of the state ; these were among the worthy objects of this law, recognized by all courts as entitled to their favorable consideration.

We are not, however, called upon, nor do we deem it expedient to construe theoretical questions, or possible cases likely to grow out of this enactment. Each case presented to us must stand or fall upon its own merits. We cannot undertake to anticipate questions, nor by a construction of the provisions of this law to lay down rules for all cases in advance.

The case at bar may be here briefly restated. The bill alleges: That on the 30th day of Oct., 1867, an execution founded upon a judgment rendered in the circuit court of Rankin county, on the 5th day of Sept., 1859, in favor of WH. Simmons, against J. M. Patterson, was placed in the hands •of the sheriff of Rankin county, and by him, on the same day, levied upon certain cotton as the property of Patterson; that the cotton thus levied on was not liable to said judgment and execution, but that the complainants in the bill had a prior lien thereon — it being a part of the cotton crop raised by said Patterson in Rankin county, during the year 1867, and was secured to the complainants for advances of money and provisions made by complainants to Patterson subsequent to the 18th day of Feb., of that year, to enable him to purchase stock and other supplies and necessaries to carry on a farm and make a crop on said plantation, in said Rankin county, during the year 1867; that the contract and agreement by which said crop of cotton was pledged to complainants, and a prior lien thereon secured to them, for said advancements and supplies, was duly entered into in writing, executed and acknowledged by the said Patterson 'on the 25th day of Sept., 1867, a copy of which is 'annexed to the bill; that said contract or agreement was duly filed and registered according to law, in the clerk’s office of the circuit court' of Rankin county, on the same 25th day of Sept., 1867; that the doings and actions of the plaintiff in execution, his attorneys and the sheriff, are contrary to law and equity, tending to the injury and oppression of complainants ; and they pray that Simmons, his attorneys, the sheriff, and Patterson be made parties, etc. Also that an injunction be granted, perpetually enjoining proceedings on the execution, and that the “ mortgage lien be foreclosedand there is also a prayer for general relief.

Referring to exhibit “ B,” we find the paper writing between complainants and Patterson (the basis of this suit), the main features of which are these, to-wit:

It begins thus: “This agreement made and entered into this 25 th day of Sept., 1867,” etc., “ Witnesseth, that whereas, Howard, Preston & Barrett, since the 18th day of Feb., 1867, have made advancements of money and provisions to the amount $3,000, to the said J. M. Patterson, which is now due and payable, to enable the said Patterson to purchase stock and other supplies and necessaries to carry on a farm and make a crop, in Rankin county, during the year 1867, and with which money Patterson purchased mules and a horse, and by which advancements he was able to purchase other supplies and necessaries, to cultivate said farm and to make a crop ; and the said Patterson being desirous to secure H. P. & B., against loss on account of such advancements, and to secure to them the full benefits of the provisions of the acts of the legislature of Mississippi, entitled “ an act for the encouragement of agriculture,” approved Feb. 18,1867,” etc., doth hereby and by this agreement, grant, bargain and sell to them all the crop of cotton now growing, or which may be grown on said place in 1867, and also the mules, and horses.” This contract and agreement to constitute a prior lien in favor of said H., P. & B.,for the judgment of their said debt. If paid on or before Dec. 25,1867, the contract tobe void, etc.

Of the construction and interpretation of contracts, Bouvier says: “ The intention of the parties, is the pole star of construction; but their intention must be found expressed in the contract and be consistent with rules of law. The courts will not make a new contract for the parties, nor will words be forced from their real signification.” Bouvier’s L. Die., Title, Contracts.

An inspection of this writing shows that it was not only the intent of the parties thereto, to bring it, but by its express language it is brought, within the terms of section 1 of this law. The debt is for advances, supplies, etc.; the writing-declares the intention of the parties to be, to fix the arrangement under section 1; and we hold it to be a “ contract ” under section 1, and not a “ mortgage ” under section 7.

Kent says: “ It is a principle of law, that if the form of the conveyance be an inadequate mode of giving eifect to the intention, according to the letter of the instrument, it is to be construed under the assumption oí another character, so as to give it effect.” Kent’s Com., p. 493, and cases cited.

The bill is conceded to be defective in several particulars, but its allegations in connection with the contract of lien show prima facie, at least, a proper and meritorious case, for the interposition of a court of chancery. There are all the elements of equity, and the complainants are without adequate remedy at law, to-wit: The debt for the advances and supplies; the contract and its enrollment; the levy by execution subsequent to the enrollment upon property upon which the bill alleges there is a prior lien in favor of complainants; that this property is not subject to such levy under the execution ; that there is danger of being deprived of the benefit of such lien; and the prayer for relief.

Of the power of a court of chancery to protect this property and secure it to the rightful parties, there can be no doubt. The broad and ample powers of equity should not be invoked in vain, because of informalities, or defects susceptible of amendment. Our laws have clothed the courts with almost unrestricted powers in this respect, and these powers should be liberally employed to the end that the very right and justice of each case shall be attained. Section 6 of the law under review, enacts, “ that it shall not be lawful for any sheriff or other officer to levy or sell by virtue of an execution or other process, issuing from any court in this state, any crop of cotton, corn or other agricultural product, while the same is under cultivation, and before it is matured and gathered.” Important questions in connection with this section were discussed by counsel:

1. Whether a lien under a judgment and execution can exist, or attach while a levy would be unlawful.

2. Whether, if in the case at bar, there was cotton “ matured and gathered ” before the enrollment of the contract on September 25th, 1867, it would be subject to the execution on the judgment, or to the lien created by the contract.

These questions are not presented by the record. It does not appear that there was or was not cotton, “ matured and gathered ” prior to the enrollment of the contract. If there was such cotton “ matured and gathered,” then will arise the question whether cotton “ matured and gathered ” prior to September 25th, 1867, is subject to the judgment and execution, or whether there were equities which would decree it to complainants, notwithstanding the judgment and execution. We are referred to 3 S. & M., 409; 7 Wallace, 218; 1 Paige Chy. R., 128-283; 1 Ib., 219; 6 Barb. Chy. R., 181; 11 ib. 494; 6 ib., 27.

In the case of Planters Bank v. Walker, 3 S. & M., 409, it was held that pending the prohibition of the levy and sale of property by execution, no’ lien attached, though it was held in another case by Chief Justice Sharkejq that a lien might exist, in a given case, even though a levy and sale could not take place, as in the case oí suspension of a judgment, etc.

No lien attached under the execution in the case at bar, except by statute, and then only upon cotton “ matured and gathered.”

As to the authorities cited, in which a court of chancery will enforce an “ equitable lien ” it need only be said that they do not apply to cases of this character. The lien of complainants is created by statute, and exists only by the same statute from the enrollment of the contract. There can be no “equitable lien” in this case except as against Patterson; this lien being the creation of express enactment, and not by those equitable rules, as in the cases to which we have been referred.

Whether there was cotton “ matured and gathered ” belonging to Patterson prior to September 25th, 1867, is a question of fact, and not one which courts can determine by the seasons of which judicial notice cannot be taken further than their general division. The precise period of the maturity of a crop on a particular plantation cannot be thus determined. The bill is defective in not stating the facts here referred to as they existed in this case.

Liens are created in various ways; by law, and by contract; they are legal, or equitable, etc.

In the case at bar, we have only t.o do with liens created by statute, that in favor of the complainants and the lien of the judgment and execution, owing their existence alike, to the enactments of the legislature. Both being the creation of the same authority, are of equal dignity, though much may be urged in favor of the object of the law of February 18th, 1867. But the same authority which created the lien for the encouragement of agriculture, declared as solemnly, that “ all judgments and decrees ” enrolled as required by law, “ shall be a lien upon, and bind all the property of the defendant within the county where enrolled, from the rendition thereof, and shall have priority according to the order oí such enrollment, ” etc. Rev. Code, page 524, art. 261. If therefore, at any time prior to the enrollment of the contract of September 25th, there was cotton “ matured and gathered,” the property of Patterson, the lien of the judgment and execution of Simmons attached, and it could have been levied upon and sold by such execution. However strongly the claim of complainants’ appeals to us in consideration of this cotton having been produced by their money, as for the same reason, however little claim the judgment creditor may have upon property thus produced, nevertheless, there is no other result to which we can arrive. If, in this instance, the plain rules of law operate with apparent, if not with actual injustice, it must be remembered that complainants might have protected themselves by an earlier registration of their contract.

Having been conducted to the conclusion that the judgment creditor is entitled to all the cotton “ matured and gathered” before the registration of the agricultural contract, inasmuch as it does not appear when the cotton in controversy was gathered, we will give the complainants an opportunity to amend their bill, so as to show that the particular cotton involved was not gathered before the enrollment of the contract, or as the fact may be, in case a part of this cotton was gathered before, and a part subsequent to such enrollment, the complainants being entitled only to what was not gathered on the 25th day of September, 1867, the day of registration of the contract.

The application of complainants to amend, must be made to the nest term of the chancery court of Rankin county, and if such amendment is not made, the court below will dismiss the bill.

The decree dismissing complainants hill is reversed, and cause remanded for further proceedings, in accordance with the foregoing.-