Opinion
No. 33837.
October 23, 1939.
1. CHATTEL MORTGAGES.
Under statute, description of property in deed of trust covering all crops of cotton, corn, truck, and other agricultural products produced during certain year on designated land, and all mules, horses, cattle, farming tools, implements, and machinery located thereon, and all increase thereof and additions thereto within 12 months, was valid (Code 1930, sec. 2130).
2. APPEAL AND ERROR.
On appeal from judgment in mortgagor's action to replevin personalty covered by deed of trust and in possession of trustee who was proceeding to foreclose deed, Supreme Court would not consider whether sale would have been valid if it had taken place as advertised, since replevin suit stopped sale.
3. CHATTEL MORTGAGES.
If manner of advertisement and place of sale fixed by trustee foreclosing trust deed on personalty were unauthorized and if sale were void, it would not entitle mortgagor to possession of personalty as against trustee for any injury thereby resulting to mortgagor, although mortgagor would have his remedy, but not in replevin.
4. REPLEVIN.
In mortgagor's suit to replevin personalty covered by deed of trust and in possession of trustee who was proceeding to foreclose deed, evidence was insufficient to show that allowance of attorney's fee to reimburse mortgagee for employing attorney to represent trustee was error, on ground that attorney was regularly employed at fixed salary.
APPEAL from the circuit court of Montgomery county; HON. JNO. F. ALLEN, Judge.
J.W. Conger, of Winona, for appellant.
It is a dead certainty that unless the deed of trust specifically names the place of sale, or gives the trustee the right to name the place himself, then the statute will control, as to the place of sale, and that would be at the front door of the courthouse of the county. It will be seen by examination of the deed of trust that it is wholly silent as to the place of the sale. The statute is as much applicable to the sale of personalty as it is to the sale of realty. If the sale in this case was an attempt to carry out the terms of the deed of trust as to land, then there could not possibly be an argument. The statute referred to is Section 2169 of the Code of 1930, and the decisions that support the views here are: Goodman v. Building Loan Association, 71 Miss. 310, 14 So. 146; Williams v. Dreyfus, 79 Miss. 245, 30 So. 633.
There is no ground upon which the action of the trustee in advertising the property to be sold 5 miles north of Kilmichael at the plantation home of appellant can be sustained. The trust deed is wholly silent as to the place of sale.
The trustee in endeavoring to perform the functions of the trustee, under the law, and the terms of the instrument, illegally, and having taken possession of the property and attempting to effectuate an oppressive and illegal sale of same was no more than the act of a stranger — a trespasser.
No attorney's fees are allowable in a replevin suit unless those fees are actually incurred. A replevin suit is one in tort. The allowance by the court of an attorney's fee was based on the assumption that the replevin writ was wrongfully sued out. That was not true. The replevin suit was rightfully sued out. What else was more appropriate than a replevin suit? The property was "under the hammer," improperly and unlawfully raised, ready to strike.
The notice of sale was insufficient.
The plaintiff, Eiland, in his replevin suit, correctly described his mules and the cow, and replevied them against the trustee. The trustee then cannot walk up and say, "Yes, those are the same animals I have a lien on," for the reason when he looks at his deed of trust, he does not find any such animals in it. He only finds "3 mules," or he only finds, "1 cow," and he cannot be heard to say orally that they are the same cows or the same mules.
We respectfully submit that the Supreme Court's judgment in the case is bound to be that the case be reversed and remanded with instructions that the mules and cow be released to the appellant, free of any lien; but as to the crops, it seems that they are sufficiently described, and, of course, would be held under the trust deed. But inasmuch as the trustee's action in offering to sell the property on terms repugnant to all reasonable policies of the law, the whole case, we submit, should be reversed and remanded to the Circuit Court. The plow tools are in the same category with the live chattels.
R.E. Spivey, Jr., of New Orleans, Louisiana, for appellee.
Replevin was not proper remedy.
Roberts v. International Harvester Co., 181 Miss. 440, 180 So. 747; Buckley v. Thornton, 1 Miss. Dec. 220.
The court held the description to be sufficient. Appellant, by his own testimony, identified the property as being that which he owned and which was conveyed in his deed of trust.
Chattel mortgage on property owned or to be acquired is valid.
Miss. Code of 1930, sec. 2130; Kelly, Trustee, v. James A. Reid, 57 Miss. 89; Davis v. O'Connell, 93 Miss. 348, 47 So. 673.
The parties have the right, by providing therefor in the deed of trust, to fix the place of sale.
Miss. Code of 1930, Section 2169; Lynchburg v. Castleman, 116 Miss. 188, 76 So. 878; Goodman v. Durant Bldg. Loan Assn., 71 Miss. 310, 14 So. 146.
This was not an allowance of attorney's fees in connection with the action in replevin. In order to fix the interest of appellee in the property involved, it was necessary to establish the amount of the indebtedness of the appellant to the Oxford Production Credit Association. This was established by making proof of the principal amount of the debt, the interest thereon and the attorney's fees provided for in the note.
Appellee, in the capacity as trustee in a deed of trust executed by appellant in favor of the Oxford Production Credit Association on personal property, took possession of certain personal property claimed to be covered by the deed of trust and was proceeding to foreclose the deed of trust in pais upon the ground of the condition broken. Appellant replevied the property giving a forthcoming bond therefor. There was a trial resulting in favor of the trustee. From that judgment, appellant prosecutes this appeal.
The indebtedness secured by the deed of trust was overdue and unpaid. This is unquestioned. The questions are: (1) Whether the description of the property covered by the deed of trust is void; (2) whether the proposed advertisement and sale would have been void if it had taken place; (3) whether appellant was entitled to the judgment on the forthcoming bond for a reasonable attorney's fee.
(1) The property conveyed by the deed of trust is therein described as follows: "All crops of cotton, corn, truck and other agricultural products growing or to be grown by grantor and by anyone for him, or in which he may have any interest, and produced during the year 1938, and particularly upon that tract of land in Montgomery County, Mississippi, described generally as: The farm, containing 240 acres, owned by Alex Eiland and cultivated during said year by Grantor, located 5 miles North of Kilmichael, Mississippi, Minerva Public Road, bounded, on North, by lands of C.A. Townsend, on East, by lands of C.A. Townsend, on South by lands of C.S. Hamer, and on West, by lands of C.S. Hamer. Also all of my mules, horses, and cattle, consisting, at this time, of 3 head of mules, 0 head of horses, and 1 head of cattle. All farming tools, implements, and machinery. Also intending to convey, and hereby conveying, all property of like kind or class as that hereinabove described, located on or used in connection with the aforesaid land, whether specifically described or not, and also all increase thereof and additions thereto within twelve months from the date hereof."
The property taken possession of by the trustee was found on appellant's farm and was owned and used thereon by him in connection with his farming operations. The following is a description of it: "One Black Mare Mule named Bell, about 7 years old, one Red Horse Mule named Tom, about 15 years old, one Bay Mare Mule named Low, about 10 years old, one unnamed grade jersey cow, and all plow tools, equipment, and machinery used and owned by said Alex Eiland. Also about 40 bushels of corn and any and all other feed crops now held by him." And the livestock, tools, equipment, and machinery were owned by him when the deed of trust was executed, and the corn and other feed stuff produced within twelve months after its execution. Section 2130 of the Code of 1930 provides as follows:
"A deed of trust or mortgage on all of the chattels of a named class or classes (not including merchandise), described or limited as to locality, owned at the time of the execution of the instrument and on such property of like kind as may be acquired during a stated period not to exceed twelve months, given to secure any and all indebtedness which the grantor may owe the beneficiary during said period, shall be a valid lien against all creditors of the grantor.
"The grantor shall have the right to pay the indebtedness thus secured with interest at any time, though not then due." Under the statute the description of the property is valid.
(2) The sale did not take place. The replevin suit stopped it. We do not reach the question whether it would not have been valid if it had taken place as advertised. As between appellant and the trustee in the deed of trust, the latter was entitled to the possession of the property for the purpose of foreclosure. If the manner of advertisement and the place of sale fixed were both or either, unauthorized by law, and if consummated void, it would not follow that appellant was entitled to the possession of the property as against the trustee for any injury thereby resulting to appellant. He would have had his remedy, but not replevin.
(3) The judgment was for the return of the property to the trustee and in default thereof a judgment in favor of the Credit Association for the amount of the indebtedness due it under the terms of the note and deed of trust, and in addition an attorney's fee of $32.24 to reimburse the Credit Association for its outlay in employing an attorney to represent the trustee. The note provided that in the event it was placed in the hands of an attorney for collection, or suit brought on it, or any portion of it, or if collected by a court proceeding, there should be added a reasonable attorney's fee.
Appellant argues that it was error to allow the attorney's fee because the Credit Association's attorney was regularly employed and therefore it was at no expense in employing an attorney to represent it in this cause. Conceding for argument's sake that the principle contended for is sound, the evidence is insufficient to support it. The only testimony on the question was that of the Credit Association attorney. He testified:
"Q. Are you paid by the Production Credit Association in New Orleans to represent it? A. Yes, sir.
"Q. You already represent the Association, do you? A. Yes, sir.
"Q. It wasn't especially turned over to any attorney, was it? A. That's right."
It will be observed that the witness did not testify that the Credit Association paid him a fixed salary to represent it in all litigation including this. For aught that appears to the contrary, he was a regularly retained attorney of the Credit Association, but instead of receiving a fixed salary to cover all of his services as its attorney, he was to receive reasonable compensation for each separate service rendered.
The other questions raised have not sufficient merit to require an opinion.
Affirmed.