Gray v. Helm

Chalmers, J., delivered the opinion of the court. ' The first clause of the trust-deed clearly secured all future advances of whatever description, without regard to their date, and brought the case fairly within the principle announced in Witzinski v. Everman, 51 Miss. 841, to-wit: That such a mortgage, when recorded, operates to secure the mortgagee against the claims of third persons in whatever advances are made under it, whether before or after the maturity of the principal debt secured. But for the last clause of the instrument it is clear that the attaching creditor must be postponed until every valid debt due the mortgagee has been satisfied. That clause is in these words : “ It is further distinctly understood and agreed between the parties aforesaid that this deed is made and intended to secui’e any advances on account of the crop of 1880, made after the maturity thereof and not mentioned therein.” These bonds must be held to limit advances, after maturity of the principal debt named (1st of November), to such as should be “ made on account of the crop of 1880,” and as excluding all post-maturity advances which were not of that character. It is impossible to give them any force or meaning except upon this theory. Without them all advances, whether made before or after maturity, and whether on account of the crop or not, were alike protected. The last clause, therefore, could not have been inserted to enlarge an instrument which needed no enlargement, but rather as a limitation of that which without it was too general and all-embracing. By it the post-maturity advances are restricted to such as are directly connected with the growing, gathering, and handling of the crop, and all others are excluded. The court below adopted this construction and excluded advances made after the maturity, and which consisted in paying off various debts due by the mortgageor to other persons. These payments were made at the request of the mortgageor, and the original consideration of the drafts was mules and provisions bought for and used in making the crop ; but it was [142] not shown that the mortgagees, had any connection with them in their inception, or even knew of their existence, until long after the maturity of the trust-deed. They were properly held not to be covered by the security. We think that the court below held the trustee to a responsibility too rigid in declaring that it was his duty to have sold the mules covered by the mortgage on the tenth day after they were delivered to him, and in allowing him for the expense of feeding them for that length of time only. The interests at stake were large, the attachment was sudden, and some time should have been allowed the trustee for looking into the attachment, for- consultation with the cestuis que trust, and for determining on his own course. He might, we think, well be allowed ten days for these purposes and a like period for advertising under the trust-deed. If remittitur on this basis is entered here the judgment will be affirmed, otherwise it must be reversed.