Opinion
No. 39710.
May 16, 1955.
1. False pretenses — selling cotton bales whereon lien waived — crime not established.
Where lienee, who had control of certain bales of cotton which were subject to deed of trust lien, had in past years sold such cotton and brought money to lienor, and in year in question, had sold other cotton subject to such liens and deposited proceeds to lienor's account, lien on bales in question had been waived and sale of such bales by lienee did not constitute crime of selling property on which there was a lien without informing purchaser thereof. Sec. 2151, Code 1942.
Headnote as approved by Gillespie, J.
APPEAL from the Circuit Court of Simpson County; HOMER CURRIE, Judge.
A.K. Edwards, Mendenhall, for appellant.
I. The Court erred in permitting the State to offer evidence of the debt alleged to have been due C.D. Simmons for merchandise sold under the advance clause of the deed of trust over the objection of the defendant, without bringing in the original books of account. Moody v. Roberts, 41 Miss. 74; Smith v. Chicago Portrait Co., 120 Miss. 277, 82 So. 145; Storm v. Green, 51 Miss. 103; Yazoo M.V.R.R. Co. v. M. Levy Sons, 141 Miss. 196, 106 So. 524; 20 Am. Jur., Evidence, p. 365.
II. The Court erred in refusing to grant the defendant a peremptory instruction at the time the State and defendant rested.
III. The gist of the crime is the intent to defraud the purchaser. Overall v. State, 128 Miss. 59, 90 So. 484; Simmons v. State, 160 Miss. 582, 135 So. 196; Sec. 921, Code 1930; Sec. 2151, Code 1942.
IV. When silence becomes a fraud, it will operate as an estoppel. Evans v. Forstall, 58 Miss. 30; Staton v. Bryant, 55 Miss. 261.
V. The mortgagee, Simmons, waived his lien under the mortgage by permitting the sale of the cotton by appellant, thereby making appellant the agent of the mortgagee. Hawkins v. Nash, 163 Miss. 500, 140 So. 522; Judd v. Delta Groc. Cotton Co., 133 Miss. 866, 98 So. 243; McCormick v. Blum, 75 Miss. 81, 21 So. 707; Phillips v. Thomas, 128 Miss. 729, 91 So. 420; Tonnar v. Washington Issaquena Bank, 140 Miss. 875, 105 So. 750; Sec. 873, Code 1942.
VI. The Court erred in refusing defendant's instruction in the following words: "The Court instructs the jury for the defendant, that if there is a reasonable doubt in your minds from the evidence in this case that the defendant believed, and was justified in believing, that he had paid the account to C.D. Simmons, when he sold the cotton to Luke Lee, then it is your sworn duty to find the defendant not guilty." Simmons v. State, supra; Sec. 2151, Code 1942.
Joe T. Patterson, Asst. Atty. Gen., Jackson, for appellee.
I. Under the proof as disclosed by this record, the jury was warranted in finding the appellant guilty of the crime charged.
II. The purpose of the statute was to provide that, where a person obtains money or property from another by the sale of property upon which there is a lien, and the purchaser has been deceived by the seller with reference to the exact title of the property in not disclosing the lien, whereby the purchaser is defrauded, then the seller is guilty of obtaining by false pretenses. Overall v. State, 128 Miss. 59, 90 So. 484; State v. Mitchell, 109 Miss. 91, 67 So. 853; Sec. 2151, Code 1942.
III. The question presented here is not whether the appellant believed, and was justified in believing, that he had paid the account to C.D. Simmons, but the question here is whether the appellant sold the cotton in question without disclosing to the purchaser thereof the existence of an outstanding lien upon same. This the appellant admits he did.
Appellant was indicted, tried, and convicted of the crime of selling three bales of cotton on which there was a lien, without informing the purchaser of the exact status of the cotton as affected by said lien, with intent to cheat and defraud the purchaser. Section 2151, Mississippi Code of 1942.
(Hn 1) The lien was a deed of trust given by appellant Simmons to secure furnish to appellant for the year 1952. The testimony of Simmons, who testified with commendable candor against his own interest, showed that he had been dealing with appellant for several years prior to 1952, and the latter had always sold his cotton and brought Simmons the money. While the proof shows that for the year 1952 Simmons did not tell appellant to sell the cotton and bring him the money, this was done. Simmons knew appellant was selling the cotton and made no objection, and Simmons knew that so much as was paid on appellant's account secured by the 1952 deed of trust came from cotton sold by appellant. It was shown that appellant was in control of the cotton, and disposed of it, and deposited the proceeds to the account of Simmons, except as to the three bales mentioned in the indictment. "This course of dealing, this knowledge and permission of the landlord, constitute in effect an appointment of the tenant as his agent to dispose of the cotton on which the lien existed." Judd v. Delta Grocery Cotton Co., 133 Miss. 866, 98 So. 243. Seavey Sons v. Godbold, 99 Miss. 113, 54 So. 838, was cited and approved in the Judd case.
Under the rule announced in the Judd and Seavey cases, Simmons could not recover from appellant's vendee the three bales of cotton or its value.
The gist of the offense with which appellant was charged was an intent on the part of appellant, the seller of the cotton, to cheat and defraud the purchaser; and if the latter was not defrauded, there was no crime. Overall v. State, 128 Miss. 59, 90 So. 484; Simmons v. State, 160 Miss. 582, 135 So. 196. The purchaser of the cotton was not cheated and defrauded, and could not have been. The lien had been waived. The directed verdict should have been given.
Reversed and appellant discharged.
McGehee, C.J., and Hall, Kyle and Arrington, JJ., concur.