Lowenberg v. Lewis-Herman Co.

48 So. 517, 94 Miss. 916

• Court: Mississippi Supreme Court
• Decided: March 15, 1909
• Status: Published

Opinion

Fletcher, L,

delivered the opinion of the court.

On the 16th day of January, 1904, Geo. W. Farr and J. M. 'Glower, owners of a certain plantation situated in Catahoula parish, La., known as “Hedgeland,” were indebted to the Lewis-Herman Company, a corporation domiciled at Lexington, Miss., in the sum of $28,000. To secure the payment of this debt Farr and Clower on January 18, 1904, executed a deed of trust to the Lewis-IIerman Company conveying certain property in Holmes county, Miss., as well as the crops to1 be grown on such property. This trust deed was so drawn as to cover all the future advances that might be made during the year. At the same time, or practically contemporaneous therewith, Farr and Clower executed a Louisiana mortgage on the Hedgeland plantation and all crops to be grown thereon, which was declared to be an additional security to the Holmes county trust deed. There was nothing in this mortgage to show that the money declared to be due -was any part of it to be expended in furnishing supplies to the Hedgeland plantation for the year 1904. This mortgage was duly recorded in Catahoula parish. Glower was placed in charge of Hedgeland plantation as manager, and during tlie year 1904 bought supplies for, the plantation from S. IT. Lowenberg & Co., merchants doing business in Natchez, Miss., to the amount of some $3,700. At the close of the crop season of 3 904 Clower delivered to Lowenberg & Co. sufficient cotton grown on Hedgeland to pay this debt. Whereupon the LewisIIerman Company, claiming that this cotton was covered by their mortgage, filed this bill against Lowenberg & Co. to recover tlie value of tlie cotton. From a decree in favor of complainant, Lowenberg & Co. appeal. The voluminous record in this ease abounds in immaterial matters much discussed in the pleading, the proofs, and the briefs; but the above statement is thought to contain all that is really important in this controversy.

It would seem to be well settled that under tlie laws of Louisiana Lowenberg & Co. have a lien on the cotton raised on theHedgeland plantation which is superior to any mortgage lien not given for plantation supplies. This lien is called in the law of Louisiana a “privilege,” and exists in favor of the supply merchant, though not recorded. Civ. Code La. art. 3217; Weill & Co. v. Kent et al., 52 La. Ann. 2139, 28 South. 295. There can be, therefore, no room for doubt that the claim of Lowenberg & Co. under their lien is superior to the claim of the Lewis-Herman Company under their mortgage. It seems to be conceded in the brief of appellants that this view is correct, provided the crops had remained in Louisiana, and provided ■Clower had power to bind the partnership; it being shown that Farr had not acquiesced in the purchase of tlie supplies from appellant. That dower’s contracts for supplies to be used in making a crop on the plantation of which he was in sole charge as manager are binding on the partnership seems to us too clear for disputation, especially in view of the fact that Glower’s purchases for the previous year had been recognized and settled. We fully recognize the distinction between the so-called “planting partnership” and mercantile or commercial partnerships; but the transaction in question falls within the rule laid down by Judge Story and cited with approval in Prince v. Crawford, 50 Miss. 344; that is to say, the authority of Clower, both in his capacity as partner and as agent for Farr, is “implied by the usages of the business or the ordinary exigencies and objects thereof.”

But it is said that Lowenberg’s lien stopped at the Mississippi river; that it had no extraterritorial force, and is of no avail after the property was. removed to Mississippi. And to-support this view, reliance is placed in Chism v. Thomson, 73 Miss. 415, 19 South. 210; Hernandez v. Aaron, 73 Miss. 436, 16 South. 910, and Millsaps v. Tate, 75 Miss. 153, 21 South. 663. If it be true that Lowenberg’s lien stopped at the state line, it may be interesting to inquire why it is not equally t'rue that appellee’s lien stopped at the same place. Both may be considered as having liens; appellants a “privilege” under the-laws of Louisiana, and appellee a “conventional mortgage” under the laws of that state—appellant’s lien being superior. In this attitude of affairs Clower, the manager in charge and a member of the firm, delivers the cotton to the superior lien holder, who actually receives and applies the cotton to the secured debt. Appellee can derive no consolation from the cases cited. In Hernandez v. Aaron the mortgage creditor was defeated in favor of the supply merchant because the mortgage lien stopped at the state line, and the cotton factor in New Orleans actually received the cotton from the debtor; and precisely to the same effect is Chism v. Thomson. In Millsaps v. Tate the superior lien of the landlord was subordinated to the lien of a mortgage creditor when the cotton was shipped out of the state and actually delivered to such creditor. This case should be examined from the viewpoint of a person residing in Louisiana and shipping cotton into Mississippi, since Glower was located in Louisiana, temporarily at least, and dealing with crops grown in that state and subject to its laws. Lowqnberg had the better lien, secured tbe cotton, which never became subject to appellee’s mortgage lien, and must prevail. Of course, no importance can be-given to the bill of sale executed by Barr and Glower long after the cotton was delivered to appellants.

The decree is reversed, and the hill dismissed.