Goodbar & Co. v. Dunn

Cooper, J., delivered the opinion of the court. In December, 1880, Fowler was the owner of two hundred and twenty-two and a half acres of land in the south half of section 24, T. 1, K. 7, in DeSoto County, the true description of which is as follows: Beginning at the southeast corner of section 24, thence north with east boundary line twenty-four chains thirty-seven and a half links, thence west (common bearings) sixty-two and a half chains forty links, thence north fifteen chains sixty-two and a half links, thence west with quarter section line to west boundary line of section, thence south to southwest corner of section, thence east to point of commencement. On the 18th of December Fowler mortgaged this land to Dunn, trustee for Boselle, describing it as “ two hundred and twenty-two and a half acres off the south and west part of the south half of section 24, TV 1, B. 7, west, in DeSoto County.” This deed was recorded in the office of the clerk of the chancery court on January 3,1881. On December 7,1882, Fowler mortgaged the same land to Lemmon & Gale to secure a debt of eight hundred and fifty622 four dollars and thirteen cents, describing it as two hundred and twenty-two and a half acres in south part of south half of section 24, T. 1, E. 7, west. This mortgage was recorded on the 7th of December, 1882, in the proper office. At the time of accepting this mortgage Lemmon & Gale had notice that by the mortgage from Fowler to Dunn it was intended to embrace all the land which Fowler owned in the south half of section 24. In January, 1883, Goodbar & Co. sued out an attachment against Fowler and levied the same on the lands, the levy being made by metes and bounds, giving it correct description. This is a bill filed by Dunn against Fowler, Lemmon & Gale, and Goodbar & Co. to reform and correct the mortgage by substituting for the description of the lands as therein given its true description by metes and bounds. The Chancellor granted the relief prayed, and from his decree both Lemmon & Gale and Goodbar & Co, appeal. The mortgage to Dunn is not, as it is contended by the appellants to be, void for uncertainty in the description of the land. The conveyance is of “ two hundred and twenty-two and a half acres off the south and west part of the south half of section 24,” and by this description is conveyed two hundred and twenty-two and one-half acres to be laid off in a strip of equal depth on the southern and western boundaries of the half section, which lines are by the description made the base lines for the survey. Bowers v. Chambers, 53 Miss. 259 ; MeCready v. Lansdale, 58 Miss. 879; Enochs v. Miller, 60 Miss. 19. As to so much of the land as was intended to be conveyed and was not included in this description the complainant was entitled to relief by a correction of the deed as against Fowler and all claiming under him with knowledge of the mistake. Cummings v. Steele, 54 Miss. 647. Nor will the relief be denied because the parties made a mistake as to the legal sufficiency of the description. Sparks v. Pittman, 51 Miss. 511. But it cannot be corrected as against a person who, -without knowledge of the mistake, has acquired a lien upon the land by legal proceedings. Nugent v. [623] Priebatch ante ; Miss. Val. Co. v. R. R., 58 Miss. 347; Duke v. Clarke, 1 D. 465. Goodbar & Co., having acquired their right by attachment before notice of the mistake, are entitled to subject the land not included by the description to the payment of their judgment as against the Dunn mortgage. The Chancellor directed this mortgage to be reformed as well against Goodbar & Co. as against the mortgagor and Lemmon & Gale, who had notice of the mistake. Ordinarily this would result in a reversal of the decree, but such result should not follow in this case, because we think it is undoubtedly shown by the record that in no event can these parties realize anything on their judgment from a sale of the land. Plats of the land actually owned by Fowler, and as conveyed by him to Dunn, show that the conveyance covers all the land except about ten acres, which is covered by the description in the mortgage to Lemmon & Gale. These ten acres are shown by the evidence to be worth not more than ten or twelve dollars per acre, and it is further shown that the mortgagor, Fowler, is insolvent. We have then, eliminating all the lands from consideration except these ten acres, this condition of things : Dunn has a mortgage on these ten acres void for uncertainty as against Goodbar & Co., but good as against Lemmon & Gale, who had notice of the mistake, while Lemmon & Gale have a mortgage which sufficiently describes the land and which has priority over the attachment of Goodbar & Co. What are the rights of the parties under these circumstances? On a casual examination it would seem that Dunn could take the proceeds of the land from Lemmon & Gale, and that Goodbar & Co. could take it from him, and then that Lemmon & Gale could re-take it to lose it again to Dunn, and so the one in possession of the fund would always find his rights postponed to one of the other claimants. We think, however, the rights of the respective parties are preserved under such circumstances by the following rule: If the proceeds of the property are insufficient to discharge all / the liens but exceed the amount of the second mortgage, an amount/ [624] equal to the second mortgage is to be set aside and the balance so far as necessary appropriated to the payment of the third encumbrancer. The priority of the first mortgage over the second is to be retained on a settlement of their rights for an amount equal to the first mortgage debt after subtracting therefrom the sum paid to the third encumbrancer; if, however, the sum realized by a sale of the property does not equal the second mortgage debt, the third encumbrancer is to be ignored, and the fund distributed between the first and second mortgagees, the first being paid his debt in full. In this way the rights of all the parties arc preserved, for the third encumbrancer is entitled to nothing until the second is paid, and the second has no right to any of the fund until an amount equal to the first mortgage has been taken therefrom, and the first mortgagee should not'be permitted to charge against the second any sum which by reason of his laches has been appropriated to the third. The amount of the second mortgage debt in this case is about nine hundred dollars. The value of the land as to which the third encumbrancers are superior to the first is only from one hundred dollars to one hundred and twenty-five dollars. In no event, therefore, could they be entitled to any part of the fund, and to remand the case would but be to accumulate costs. The decree will therefore be affirmed, but the costs of this appeal are to be paid in equal parts by the appellants, Lemmon & Gale, and the appellee.