Foute v. Fairman

Simball, J.: Augustus M. Foute, the appellant, brought this bill to foreclose a mortgage executed by Z. C. Fairman and wife, conveying certain lands as security for the performance of the contract therein mentioned. The lands are accurately described in the mortgage as to the county and state, and the section and fractions of sections, but omits the township and range. The complainant states that this mortgage was duly executed and recorded in the proper office, in 1865. The indebtedness of Z. C. Fairman originated in a purchase of cotton by the complainant from him, in 1862, for which he paid Confederate money, Fairman agreeing to make delivery of the cotton. For the undelivered portion, the parties had a reckoning in 1865, when the indebtedness of Fairman was settled at $2,966.63, for which his notes and the mortgage were given. In October, A. D. 1868, one William Adams recovered judgment in the circuit court of Copiah county against Z. C. Fairman for $419. An execution on this judgment, as averred in the bill, was levied on the lands included, or intended to 'be included and conveyed by the mortgage, and sold by the sheriff to L. Q. Fairman, who is made party defendant. The object of the bill is to foreclose the mortgage, dealing with this sale by the sheriff as subordinate to the superior equity of the mortgage, and as also contrived and carried through to protect the lands against the complainant’s rights. The demurrer of the defendants was overruled. The bill was answered, proof taken, and upon final hearing the bill was dismissed. — 548 — It is abundantly shown by the testimony that the omission of the township and range, in which the lands were situated, was by mistake and accident. The mortgagor, Fairman, and the agent of the complainant consulted an attorney to draft the mortgage. The land papers of Fairman not being at hand, the attorney drafted the skeleton or formal parts of the instrument, leaving a blank space for a description of the lands. Shortly afterward, the deed in controversy was written, using the original draft as a form. • Calvin Blue, a witness, gives this account of how the mistake occurred: “Witness did not think the township and range were omitted by design.” “W. W. McLaurin commenced writing the mortgage, and wrote to the word section and figure c 12/ and witness wrote the balance, supposing the description was complete.” The same witness states that the purpose was to have had the mortgage written at Jackson, by W. P. Harris, attorney ; but that failed because of the absence of some of the land papers. The blank left in this deed was not sufficient to contain the description of the land, hence another deed was written. Z. C. Fairman admits that the lands sold by the sheriff under the Adams’ judgment are the “ same lands intended to be included in the supposed mortgage,” but does not admit “ that in fact and legal contemplation they were so included,” and submits that •the mortgage is void and of no effect as to judgment creditors without notice' of the real lands intended to described, said description being uncertain; “admits that the lands intended to be conveyed in the mortgage were sold under the judgment.” L. Q. Fairman, the purchaser at sheriff’s sale, through King, his agent for that purpose, admits that “ he supposed that the lands bought by him are the lands intended to be conveyed by the mortgage; ” admits that “ his brother, H. C. Fairman, under the advice of — 549 — King, the attorney-at-law, gave notice at the sale that the lands were the same as those in the mortgage; was prepared to give more than the amount of his bid ($50) if the land had been run up on him, but thought, in common with others, that he might make a good bargain if opportunity offered.” The admissions of the defendants and the testimony conclusively establish that the township and range were accidentally omitted; that Z. C. Fairman intended to give a complete identification of the lands; that L. Q. Fairman had notice and knowledge of this accidental mistake before and at the time of his purchase under the judgment. With this knowledge on the part of the father (the mortgagor) and his son (the purchaser), it is further proved that the advice of their attorney was taken, whether that circumstance did not make the mortgage inoperative and void. The advicé was favorable to them;' and thereupon the attorney of the debtor and the proposed purchaser furnished the sheriff with the description of the lands, who, at his instance, made the levy. Parcel of the same advice was, that H. C. Fairman, another son of the debtor, and brother of the proposed purchaser, should give public notice at the sale that the land was incumbered by the complainant’s mortgage. The notice was proclaimed for one of two purposes: either to warn bidders that they would not acquire the fee title, but only the equity of redemption; or to drive off competition, so, as to enable one of the debtor’s family to buy in the property cheap. It does not appear that those present were informed that there was a mistake in the mortgage, and that the debtor and mortgagee had been advised by counsel that for such reason the deed was void. It is important to form a distinct conception of the nature and quality of a judgment lien. It does not confer a property or right in the land upon which it operates. Conrad v. Atlantic Ins. Co., 1 Pet. 443. It — 550 — is a “ right ” to a satisfaction of the judgment out of the property, superior and in preference of any adverse interests “ subsequently ” acquired. Subsequent incumbrances and conveyances are subordinate to the lien, and are of no avail as against a purchaser under the judgment. No act done or suffered by the debtor, subsequent to the lien, will affect, prejudice or displace it. The right of satisfaction and sale is limited to the interest of the debtor in the property. The lien is, therefore, subject to all equities which exist “ at the time” in favor of third persons. Walton v. Hargroves, 42 Miss. 26. It is but a general (not a specific) lien, and the judgment creditor acquires thereby no higher or better right to the property of the debtor than the debtor himself had when the lien arose. Brown v. Pierce, 7 Wall. 218. These principles are fully accepted in this court. The judgment in favor of Adams being “ subsequent ” to the mortgage, was subordinate to all the equities of the appellant. The judgment creditor had no “ higher or better right to the property than the debtor himself had.” If Z. C. Fairman had created a charge of equity upon the property by the mortgage in favor of Foute, then the judgment lien was subordinate to it. If the mortgage, for the uncertainty, was void as to Fairman, so it would be as to his judgment creditor. Is the deed absolutely void for uncertainty ? We know that there are several tracts of land in Copiah county to which the descriptive words equally apply. It requires, therefore, if the deed shall take effect at all, that extrinsic evidence shall be employed to 'identify what particular lands were meant. This is a latent ambiguity, which is made to appear by extrinsic evidence. The only object for which such evidence may be received, is to point out the identity of the subject. The description in the writing must be accepted as true so far as it goes; parol testimony cannot contradict or vary it. But where the grant applies indifferently to — 551 — several subjects, then it may be proved aliunde which was meant. The familiar illustrations of the principle given in the books are, a devise of the manor of B., or a devise to the devisor’s nephew, John; if there be two manors B., or two nephews John, a latent ambiguity arises, and extrinsic evidence is resorted to to distinguish which property or person was intented. It will be observed that it would have been easy for the devisor to have given a further and more definite description of the subject or of the person, so as to have dispensed with testimony in aid of the meaning, Such testimony does not conflict with the description in the instrument, but only serves to make precise and certain that which by reason of generality of description is left uncertain. Carmichael v. Foley, 1 How. Latent ambiguities in deeds and wills have been several times considered in this court, and the extent to which extrinsic testimony may be used to give direction and certainty to a general description. Hanna v. Renfro, 32 Miss. 125; Hazlip v. Noland, 6 S. & M. 294; McCaleb v. Pradat, 25 Miss. 267; Whitworth v. Harris, 40 ib. 483; Peacher v. Straus, 47 Miss.; Dixon v. Cook, ib. As to the identity of the lands the case stands thus : The complaint avers that Z. C. Fairman conveyed or intended to convey the same lands bought by his son at sheriff’s sale; both the father and son, in their respective answers, admit the averment in effect to be true. The bill, however, does not state in what consists the difference in the description of the lands mortgaged and the lands bought at sheriff’s sale. The answers identify the lands to be in township 8, range 5, east. It is in evidence that these lands constitute a plantation upon which the mortgagor and his family had resided for many years. Being the owner and in possession of lands corresponding to the sections and parts of sections mentioned in the mortgage, and there — 552 — being no evidence that tbe mortgagor owned other lands corresponding to the description, or any other lands in Copiah county, go far to point out the range and township. But L. Q. Fairman bought with notice that the lands levied upon were the same lands included in the mortgage. He, therefore, has ho right to expect that he could acquire more than the equity of redemption. Included in the mortgage, in addition to the lands, was also personal property. The mortgagor admits that he has part of it in possession. As to that the complainant would be manifestly entitled to a sale and its proceeds. As the case must be remanded to the chancery court, the complainant must be required to amend his bill with allegations containing a proper and full description of the lands intended to be mortgaged, and also that the range and township in which they are located were omitted from the deed by accident and mistake, with a prayer that the deed may have effect, and be rectified so as to embrace by descriptive words the mortgage property. It is highly probable, if the bill had contained such allegations, looking to a reformation and correction of the mistake as well as to a foreclosure, the relief which he sought would have been granted. This record abundantly shows the mistake; it further shows that the purchaser at the sheriff’s sale was aware of the lands which his father supposed that he had mortgaged; in other words had knowledge of the mistake. Decree reversed, and cause remanded for further proceedings in accordance with this opinion.