Opinion
No. 33909.
January 15, 1940. Suggestion of Error Overruled February 12, 1940.
1. EVIDENCE.
It is common knowledge, of which the court will take judicial notice, that generally "agricultural products" in Mississippi are understood to mean cotton, corn, potatoes, peas, hay, and other usual crops planted and harvested during the calendar year.
2. EVIDENCE.
In landlord's action against holder of deed of trust executed by tenant, to recover tung oil nuts grown on leased premises, description of the property in the deed of trust as "all crops of cotton, corn, truck and other agricultural products," was not so definite as to exclude parol evidence of what was meant by "agricultural products," showing that tung oil nuts were not included.
3. ESTOPPEL.
In order to constitute an estoppel, the writing claimed to operate as such should be clear and unambiguous.
APPEAL from circuit court of Perry county; HON.W.J. PACK, Judge.
H.D. Young, of New Augusta, and R.E. Spivey, Jr., of New Orleans, La., for appellants.
A deed of trust conveying "all crops of cotton, corn, truck and other agricultural products growing to 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 Greene County, Mississippi, described generally as: The farm, containing 65 acres, owned by B.E. Green and cultivated during said year by grantor". . . . "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," conveys the tung oil nuts grown on the described land during the year 1938.
Tung oil nuts are crops of agricultural products.
2 C.J. 988, Sec. 1; 3 C.J.S. 361; Northern Cedar Co. v. French, 230 P. 837, 131 Wn. 394, 3 Words Phrases, 381; Webster's New International Dictionary, (2 Ed.); Wood v. Pace et al., 164 Miss. 187, 143 So. 471; Summerlin v. Orange Shores, Inc., (Fla.), 122 So. 508; Haines City Citrus Growers Assn. v. Petteway (Fla.), 145 So. 183.
Title to crops is in tenant.
Alexander v. Zeigler, 84 Miss. 560, 36 So. 536; Opperman v. Littlejohn, 98 Miss. 636, 54 So. 77; Wood v. Pace, 164 Miss. 187, 143 So. 471; Williams v. Sykes, 170 Miss. 88, 154 So. 267.
Landlord cannot reserve title to part of crops as rent by special agreement.
16 R.C.L. 980, 981, Secs. 493, 494; 36 C.J. 388, Sec. 1275 (7); 36 C.J. 684, Note 87(c).
Contract between landlord and tenant is not a sale of the tung oil nuts.
Opperman v. Littlejohn, 54 So. 77; Sec. 3347, Code of 1930; 24 R.C.L. 49, Sec. 312; 12 R.C.L. 551, Sec. 76; Johnson v. Dick, 27 Miss. 277.
As to subordination and non-disturbance agreement, execution thereof by landlord makes his interest or right in, or lien on, tung oil nuts inferior and subordinate to deed of trust executed by tenant conveying all crops. The written contract controls.
Red Snapper Sauce Co. v. Bolling, 95 Miss. 752, 50 So. 401; McInnis v. Manning, 131 Miss. 119, 95 So. 250; Dowling v. Smyley, 116 So. 294.
Oral evidence is inadmissible to alter, vary, or contradict terms of written agreement.
Davis v. Butler, 128 Miss. 847, 91 So. 279; Kendrick v. Robertson, 145 Miss. 585, 111 So. 99; Edrington v. Stephens, 148 Miss. 583, 114 So. 387; Stone v. Grenada Grocery Co., 180 Miss. 566, 178 So. 107; Sutton et al. v. Cannon, 135 Miss. 368, 100 So. 24.
Reservation by parol is inadmissible.
Campe v. Renandine, 64 Miss. 441, 1 So. 498.
Legal effect of written instrument cannot be contradicted, altered, or changed by parol evidence of prior agreements.
Thompson v. Hill, 147 Miss. 489, 112 So. 697.
Superior equity is in appellant.
Union Indemnity Co. v. Shirley, 170 Miss. 594, 150 So. 825; Coffey v. Land, 176 Miss. 114, 167 So. 49; Butler Merc. Co. v. Cruise, 175 Miss. 200, 166 So. 325.
Dale Koonce, of Hattiesburg, for appellee.
The waiver is not sufficiently certain to estop appellee.
Thomas v. First National Bank, 101 Miss. 500, 58 So. 478; 10 R.C.L. 695, Sec. 23; 21 C.J. 1090, Sec. 69; 21 C.J. 1102, Sec. 97; 19 Am. Jur. 625, Sec. 27.
Appellants were not misled by the waiver.
Hartsell v. Myers, 57 Miss. 35; I.C. Ry. Co. v. Hardee, 83 Miss. 560, 35 So. 764; Williams v. Hardee, 140 Miss. 155, 106 So. 17.
The tung nut crop having been, by agreement between appellee and the Association, omitted from the deed of trust, no judicial construction or interpretation of the term "agricultural products" can be availed of by appellants; and the various authorities of that character cited by appellants in their brief are of no effect.
And we submit that, had the waiver as prepared by the Association informed appellee that all agricultural crops with which Dallas was to have to do during the year 1938 were included in Dallas' deed of trust, and had not appellee informed the Association that the nut crop was to belong to him, appellants would not be able to claim that the crop of tung nuts in question was included in the Association's deed of trust from Dallas. With us, agricultural products mean, by reason of our restricted farming, only the crops which we plant and grow and harvest in one and the same year; and Dallas informed the Association's employee who prepared his deed of trust that his crops were to be corn, cotton, peas, etc., which he was to plant that year; and the Association's manager and other employees, independently of what Dallas so told them, had but to use their common reason and ordinary "horse sense" to know that the nut crop was not to be Dallas' and that it was not the intention of Dallas to give a deed of trust on that crop or of appellee to waive his rights with reference to that crop. The tung trees, 65 acres in all, were 4 and 5 years old at that time. They had been planted by appellee, and by him and at his expense had been cultivated and cared for during the time when they did not bear and were a dead expense. He had devoted his land to them, and they were part an parcel of the land itself. Only he had taken the risk during those growing years of having them destroyed by a plant disease or otherwise and of losing his investment, and he had done so for one reason, and the only, which was that he might ultimately harvest nuts from them for the market. Dallas had never sustained one cent of expense in connection with them during those years and had had no risk whatsoever with them. He was merely a negro renter for the one year 1938. The Association's manager and other employees are practical men and are acquainted with our South Mississippi farming; and all of these things they knew or had but to use their common sense to know; and they knew, therefore, without being expressly informed by appellee, and especially after having interrogated Dallas, that appellee had gone to that great expense and trouble and undergone the years of risk with reference to the tung trees only, when they were beginning to bear, to give them and the land over to a negro tenant of that one year, absolutely rent free, to cultivate and to have all of the ordinary annual crops that he might make and in addition the crop of tung nuts which the trees should grow that year.
The Association and its employees, who are appellants here, were not in the slightest misled by the waiver as so prepared by the Association and signed by appellee; and we submit that they were not entitled to prevail in the lower court and that the judgment of the lower court should be affirmed here.
Appellee Green brought this action of replevin in the Circuit Court of Perry County against appellants Mixon and England, officers and agents of the Hattiesburg Production Credit Association, to recover six tons of tung oil nuts. The trial was had by agreement before the circuit judge acting as judge and jury, resulting in a judgment in favor of appellee. From that judgment, appellants prosecute this appeal.
Appellee owned the land, sixty-five acres, on which the nuts were grown. His tenant on the land for 1938 was one Dallas. Dallas gave a deed of trust to secure advances made him by the credit association to enable him to cultivate the land. Such advances were secured by a deed of trust on the crops to be produced. Appellants, for the credit association, claimed that the nuts were covered by the deed of trust. Appellee claimed they were not and therefore belonged to him.
The evidence is undisputed. Therefore, there is only a question of law to be determined. Appellee owned sixty-five acres of land. He rented it to Dallas for the year 1938. Dallas agreed to cultivate it in cotton, corn, peas and other crops usually raised on lands in that section. On the land were tung trees, some four and some five years old. Appellee agreed to furnish Dallas with a home on the land, together with plow, tools and mules with which to cultivate it. Dallas was to have all the crops he raised on the land. He agreed to spray, prune and gather the tung nuts, all of which were to be the property alone of appellee — Dallas was to have no part of them. In cultivating the land in the usual crops, the evidence showed that thereby the tung trees were automatically cultivated. More briefly, the arrangement was this. Dallas was to have all the crops he raised on the place, except the tung nuts, which were to be the property alone of appellee.
The property covered 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." At the time of the execution of the deed of trust, appellee, at the request of the credit association, executed a written waiver of any interest he had in the property conveyed by it. However, at the time and before the execution of the deed of trust, appellee notified the credit association, both orally and in writing, that the tung nuts belonged to him — that Dallas had no interest therein, and by the waiver he was not consenting that they should be covered by the deed of trust. Appellants objected to evidence to that effect upon the ground that, by its plain terms, the deed of trust covered tung nuts as well as other crops produced, and, therefore, under the law, parol evidence was inadmissible to vary or change such terms in any substantial manner.
It will be observed that in the deed of trust tung nuts are not conveyed in so many words. But, appellants' contention is that the language "other agricultural products" sufficiently described them. It is a matter of common knowledge, of which the Court will take judicial notice, that generally "agricultural products" in this State are understood to mean cotton, corn, potatoes, peas, hay, and other usual crops planted and harvested during the calendar year. We are of opinion therefore that the deed of trust is not so definite as to exclude parol evidence of what was meant by "agricultural products." In order to constitute an estoppel, the writing claimed to operate as such should be clear and unambiguous. 21 C.J. 1090, Sec. 69; 21 C.J. 1102, Sec. 97; 19 Am. Jur. 625, Sec. 27. Wood v. Pace, 164 Miss. 187, 143 So. 471, we think is entirely without point.
We conclude therefore there was no error in the admission of parol evidence that the understanding was that the deed of trust was not to cover the tung nuts.
Affirmed.