O'Brien Bros. v. Wilson

Tetjly., J., delivered the opinion of the court. Upon an appeal of one branch of this case, reported in 82 Miss., 93 (s.c., 33 South. Rep., 946), this court decided upon the facts contained in that record that the creditors of the estate of W. A. Bounds were not entitled to have the administrator removed, and that the administrator and his bondsmen were not properly chargeable with certain alleged assets of the estate of W. A. Bounds, which the chancellor had decided as a finding of fact had been retained hy the widow and had never come into the actual or constructive possession of the administrator. Upon the case made hy that record the petition of the creditors was dismissed. Subsequently, after due and regular proceedings, the estate of W. A. Bounds was declared to he insolvent. Pending the insolvency proceedings, hut before the decree of insolvency was rendered and before publication to creditors to present their claims for examination and adjudication, the heirs of W. A. Bounds, joining the creditors of his estate, filed certain exceptions to the report of the administrator, which, upon consideration hy the chancellor, were disallowed, as having been “filed out of time.” After the necessary proceedings in the insolvent estate had been completed, the administrator filed his final account, and, as required hy law, all parties in interest were duly summoned to appear and file exceptions to the allowance thereof. Thereupon the heirs and creditors filed certain exceptions to such final account of the administrator, only two of which we deem of sufficient importance to merit consideration. One exception sought to have the administrator charged with the value of a stock of goods which it was averred was owned hy W. A. Bounds at the date of his death. Testimony on both sides — 547 — bearing on this question was taken by tbe chancellor, and after full consideration be decided that tbe proof did not sustain tbe contention of tbe exceptors, and did not prove either the existence of tbe stock of goods as an asset of tbe estate or that tbe goods came into tbe possession, actual or constructive, of tbe administrator. There is sharp conflict in tbe testimony; and while tbe testimony of tbe widow — seemingly corroborated by tbe inventory, which she swears contains an actual statement of tbe contents and the value of tbe stock of merchandise which she avers tbe intestate died in possession of, and which she retained with tbe full knowledge and consent of tbe administrator — is positive and direct, still, in view of tbe unequivocal denial of tbe administrator, coupled with other testimony in tbe case, we cannot say that tbe conclusion of tbe chancellor upon this finding of fact is manifestly wrong, and tbe decree disallowing this exception is therefore affirmed. Tbe second exception to tbe final account presented by tbe administrator sought to surcharge that account with tbe item contained in voucher Ho. 8 thereto, which is as follows: “1901, April 4th. J. B. West note secured by D. T. on crops, $3,276.84.” This exception was by tbe chancellor also disallowed, and tbe correctness of bis ruling in that regard is challenged on this appeal. Preliminary to tbe investigation of this proposition, however, it is said by tbe appellee that tbe same question was involved in tbe appeal of tbe other branch of this administration hereinbefore referred to, and that this contention of appellants was there decided adversely to their position. We do not think this question determined by that adjudication. It is true that tbe point was presented ,in one of its phases on that appeal, but not in tbe exact shape in which it is now before us. At the- time when tbe petition of tbe creditors of tbe estate was presented on appeal, tbe estate bad not been declared insolvent,- and tbe final account of tbe administrator, while filed, was still pending, and this court could not decide in advance of tbe final action by tbe chancellor as — 548 — to the correctness of any certain allowance or claim until the final account of the administrator was presented and duly considered and passed upon. It did not, therefore, devolve upon this court upon that appeal to decide more than was necessary to determine the merits of the petition then before it. A perusal of the opinion of the court then rendered will show that the action of the chancellor in this regard was not reviewed, and that this question was not considered nor decided, but the opinion pivoted upon an entirely different point. In order to pass advisedly upon the merits of the exception here considered, it becomes necessary to review the facts, some of which were not necessarily involved in the decision upon the former appeal, and, therefore, not specifically brought to the attention of the court. W. A. Bounds died intestate on January 11, 1900. At the date of his death he was the owner, in addition to other lands, of the Beauty plantation, which he had purchased from J. B. West. At this date there remained due upon the purchase money of said plantation three notes, aggregating originally approximately $25,000, maturing, respectively, January 1, 1900, 1901, 1902. At the date of the purchase of the Beauty plantation, December 9, 1896, Bounds had executed a trust deed to secure the vendor’s lien notes representing the deferred payment of the purchase money, five in number, running ■ over a term of years, including therein not only the lands constituting the Beauty plantation, but also conveying, as s&own by the recitals of the instrument, “all the crops of cotton, corn, and all other agricultural products grown on or yielded by said lands during the years 1897, -1898, 1899, 1900, and 1901, as also all rents, issues, profits, income, and benefits,yielded by or arising from said lands during said years.” The cotton crop and products on the Beauty plantation grown during the year 1899, consisting of 174 bales, were unsold- at the date of the death of W. A. Bounds, and came into the hands of the administrator, constituting the entire assets of — 549 — said estate, with the exception of some exempt insurance money and certain minor matters not necessary here to detail. Very shortly after the death of W. A. Bounds the Beauty plantation was advertised for sale under a junior trust deed resting thereon, and on the 2d day of February, 1900, the plantation, and all live stock thereon, and 1,000. bushels of corn, and 60 tons of cotton seed were sold by the trustees and conveyed to Mrs. M. J. Bounds, the widow of the decedent, the purchase price paid being $26,560, the amount actually due under the junior trust deed. On February 5, 1900, the administrator paid to J. B. West the vendor’s lien note maturing January 1, 1900, amounting to $3,443.15, out of the funds of the estate of W. A. Bounds, and also about the same time paid sundry smaller bills due by the estate, being chiefly expenses incident to the last illness and funeral of the decedent. Subsequently, after some transactions, not necessary to narrate to a clear understanding of the single question here involved, on the 20th day of February, 1901, Mrs. M. J. Bounds, the purchaser of the Beauty plantation at the trustee sale aforesaid, conveyed to G-. A. Wilson, individually, an undivided one-half interest in said plantation, work stock, farming implements, and other personal property thereon, for a stated consideration of $1,500 in cash. The instrument contains this stipulation: “The right of the said Wilson to his half interest of the said property hereby conveyed to him is to begin when I shall have paid off and discharged the debt bought by the Delta Bank of Mrs. H. A. McDonald and purchase-money notes to J. B. West and B.- L. Jones, Ed. Jones and Mrs. Mary V. Jones.” The debt referred to as having been bought by the Delta Bank from Mrs. McDonald, being that which was represented by a trust deed executed by Mrs. Bounds to secure the money advanced to purchase the property at. the trustee sale, which had been given to Mrs. McDonald, and subsequently assigned to the Delta Bank. At the date of this conveyance, which vested the title of the — 550 — Beauty plantation in Mrs. M. J. Bounds and George A. Wilson, there remained due and unpaid two of the vendor’s lien notes executed by W. A. Bounds to J. B. West, and these were the “purchase-money notes” referred to in the recital above quoted, and upon the satisfaction of which, together with the other indebtedness, was predicated the right of Wilson to en■joy any interest in the property. After this deal had been consummated, by which Wilson, individually, upon the contingency above set out, had acquired an undivided half interest in the property, Wilson, as administrator of the estate of W. A. Bounds, petitioned the chancellor for an order to apply the funds in his hands, which had been derived from the sale of the cotton crop of 1899, to the satisfaction of the lien notes which matured in 1901 and 1902, asserting in this petition “that the two last notes secured by said deed of trust are un- . paid and are a lien on the funds in his hands, and amount to more than the said fund;” whereupon, on this ex parte representation, the chancellor, on the 3d day of April, 1901, authorized the administrator “to pay the money in his hands arising from the sale of the mortgaged property on the debt secured thereon to J. B. West, or holder of said notes.” We think this order of the chancellor error. The direct effect was to divert the entire funds of the estate of W. A. Bounds from the payment of his just debts and apply the same to the satisfaction of certain notes which were fully secured by vendor’s lien on a plantation undeniably worth many times the amount remaining due on the purchase money, and which, by the agreement between Mrs. Bounds and Wilson in his individual capacity, Mrs. Bounds had undertaken to pay, as she was obligated by operation of law to do, and upon the payment of which Wilson’s interest in the lands was entirely dependent. It was practically authorizing G. A. Wilson, administrator, to apply the entire assets of the estate for the benefit of G. A. Wilson, individually. — 551 — Aside from this, the order was based upon, a palpable misconception of the law. Even should it be conceded that after the sale of the Beauty plantation under the junior trust deed the vendor’s lien notes then unmatured still rested as debts against the estate until the security of the land bad been resorted to and exhausted, yet under no circumstances could the notes falling due in 1901 and 1902 be construed to be liens upon the proceeds of the crops produced in 1899, under the language of the trust deed executed by W. A. Bounds to J. B. West. The manifest intent of that trust deed was that the crop of each year should secure the payment of the note maturing during that crop season. So the note falling due January 1, 1900, was a lien upon the crop produced during the agricultural crop season of 1899-1900, and, therefore, properly payable out of the proceeds thereof. This was done by the administrator, and the legality of that action is not questioned by the appellants. So, again, the note maturing January 1, 1901, was a lien upon the crop grown on the land, by whomsoever produced, during' the season 1900-1901, and should have been paid out of the proceeds of that specific crop. But although the record discloses that the plantation was cultivated by its new owners during the year 1900, we note the remarkable fact that no portion of the proceeds of that crop was applied to the payment of the purchase-money note, but this note is, upon the petition of the administrator, paid out of the crop of 1899. The contention of appellee that the trust deed in question carried a running lien on all the crops produced during the entire term of years for the payment of each and every vendor’s lien note, without regard to the date of the maturity thereof, is plainly unsound. To so hold would be to say that the purchaser of the crop grown during one year upon a plantation covered by a similar trust deed, though all the liens maturing that year were fully paid and satisfied, might, after the lapse of several years, be called upon to pay — 552 — again the value of the property.purchased, because some other note, maturing in another and subsequent year, had not been promptly paid. Such a meaning was evidently not in the minds of the contracting partiés, and such a'n interpretation of the contract would do violence to a well-¿stablished business usage and custom. It is contended by appellee that the administrator is protected by Oode 1892, § 1937, which provides a method for testing the validity of the claim of any creditor that he has a lien on any property of the decedent. But that section has manifestly no application here. In the instant case no proceeding was instituted by the administrator to test the validity of any claim of lien asserted by West. But of his own mo: tion, without notice to any one, the administrator filed a petition not only not contesting the existence of the lien, but erroneously averring that the lien did exist, and voluntarily asking permission to apply the entire funds of the estate to the satisfaction of a claim which was neither a lien debt nor a preference claim. Her does it appear that West ever contended that he had any lien on the funds of the estate to protect the payment of the vendor’s lien note maturing January 1, 1901, Or that he -took any action seeking to subject the funds to such payment. This note was fully secured on the land and the crop of 1900, and West seems to have been content to let it wait for several months after maturity, and until it was voluntarily discharged by appellee, who, as before shown, had in the meantime acquired a half interest in the land on which it rested as., a prime lien. We hold, therefore, that the note to J. B. West maturing January 1, 1901, was not a lien upon the crop produced in the year 1899, and was not properly payable as a lien debt out of the funds of the estate of W. A. Bounds. Wherefore this exception to'the final account of .George A. Wilson, administrator, should have been sus553 tamed, tRe item surcharged, and tRe amount put into tRe- corpus of tRe estate for distribution according to law. Reversed, and remanded for decree in accordance with this opinion. ■ ' ■ • '