Pattison v. Pattison

1 Miss. Dec. 494

Opinion

Opinion.

Per Curiam:

We concede the correctness of the rules of law contended for by the learned counsel for the appellants as applicable to the appropriation of payments, but still think the chancellor correctly held that the land should be sold to pay the claims of the appellee. It would be most unjust to make the proceeds of the five bales of cotton spoken of a credit on the debt due to the appellee; and the proceeds of the seven bales, of cotton sent to New Orleans by the appellant, D. S. Pattison, were properly held to have been devoted to the individual indebtedness of D. S. Pattison to the appellee.

Affirmed.

The debtor has the right at the time he makes a payment to appropriate it to whichever of several demands held against him by the creditor he pleases; if he fail to exercise this right then the creditor can appropriate the payment. Crisler v. McCoy, 33 Miss. 445.

If a party be indebted by mortgage and also by simple contract debts to the same creditor, and make a payment and omit to apply it specifically to one of the debts, the law will make the application in the way most beneficial to, the debtor, viz.: to the mortgage. And so if the mortgagor sell the mortgaged property, and the purchaser pay the purchase money to the mortgagee, who has another debt against the mortgagor, the law will apply the payments made by the purchaser in exoneration of the mortgaged property. Poindexter v. LaRoche, 7 S. & M. 699.

A debtor owing several demands may, when he makes a partial payment, apply it to that demand which he sees proper. If he do not make an appropriation of the payment then the creditor may; and if neither make it the law will make the appropriation. And this right of the debtor to make the appropriation is not lost' when the creditor obtains possession of his money without his consent, otherwise than by a judicial proceeding which is binding on the debtor. And it was recognized fully in a case where the creditor attached the debtor’s money in the hands of his agent and forced the agent, in order to obtain a release of his own private funds from the same attachment, to agree that the money should be applied as the creditor desired. Dennis v. McLaurin & Co., 31 Miss. 606.

A party indebted on several accounts may, on making a payment, direct its appropriation. Champenois v. Port, 45 Miss. 355.

In this State the rule of the civil law, which, in the absence of any appropriation by either debtor or ereditor, appropriates payments most beneficially to the debtor, obtains. McLaughlin v. Green, 48 Miss. 175.

But the debtor owing several debts cannot invoke the principle that appropriation of payments are to be made in the manner most beneficial to him, if there is a course of business between him and his creditors from which an agreement will be implied that a different rule shall control. Gwin t\ McLean, 62 Miss. 121.

The rule that a debtor making a voluntary payment may direct which of several debts the credit may be applied to, and if he gives no direction the creditor may make the application, and if both omit it the law will apply it, has no application where payment is enforced by process of law or in invitum. Wooten v. Buchanan, 49 Miss. 386.