Sayers & Scovill Co. v. Doak

Anderson, J., delivered the opinion of the court. (After stating the facts as above). Two questions arise, the solution of which goes to the root of and settles the whole controversy in this case, making it unnecessary to consider the other questions argued by counsel; and they are: First, whether by virtue of our sign statute (Code of 1906, section 4784; Hemingway’s Code, section 3128 — part of the statute of frauds) under the facts of this case, the funeral car involved was freed from appellant’s mortgage, [231] and subjected to the claims of general creditors; and, if not, second, whether appellant’s mortgage, although the funeral car was therein improperly described, and said mortgage was not recordable, is enforceable as a lien against said car in the hands of said receiver. The court has held in several cases that this sign statute had no application Avhatever to any kind of business, except that of merchants and traders and persons ejusdem generis. Yale v. Taylor, 68 Miss. 598; Lyons v. Steele, 86 Miss. 261, 38 So. 371; Oliver v. Ferguson, 112 Miss. 521, 73 So. 569. It Avas held in Smith v. Perkins, 112 Miss. 870, 73 So. 797, under chapter 90, LaAVs of 1916, requiring each dealer in coffins, if an undertaker, to pay a privilege license of one hundred dollars, but providing that a merchant carrying coffins in stock and paying a privilege tax on the stock shall pay a tax of five dollars in addition to the tax required of him as a merchant; that where the merchant carries a stock of coffins in addition to his other stock and takes charge of dead bodies and prepares them for burial, he cannot escape the one hundred dollars privilege tax re-tiñir ed of an undertaker. The court said that the business of an undertaker was a distinct profession; that the undertaker took charge of the corpse and prepared it for burial and attended to its interment, Avhich Avas an entirely separate and different business from that of a merchant dealing in coffins. And in Orr v. City of Jackson, 115 Miss. 140, 75 So. 945, it Avas held that, where a jitney car company was engaged in operating automobiles and taxicabs for hire and also engaged in trading in automobile supplies and accessories, and acquired a jitney bus and used it in its business of operating automobiles for hire, such bus did not come Avithin the provisions of section 4784, Code of 1906 (section 3128, Hemingway’s Code), the business sign statute, making property used in the business of a merchant or trader liable to creditors if a business sign is not displayed as required by said statute; and that the lien of the judgment creditor in that case- was postponed [232] to the lien of the seller of the bus, who sold it with a reservation of title. The court said further that the jitney company was engaged in two separate and distinct lines of business, one of which was operating automobiles and taxicabs for the carriage of passengers for hire in Jackson and its vicinity, and the other in trading in automobile supplies. That the business of operating a bus or taxicab for hire did not come within the provisions of the said sign statute, because it was not the business- of a merchant or trader. We are of the opinion that the last case above is decisive of the question here involved. The business of an undertaker is not the business of a merchant or trader. It would come nearer being a profession than a trade. An undertaker sells nothing except his skill in preparing dead bodies for burial and attending their interment. It may be conceded for the purpose of this decision that the mortgage in question is void because the hearse was not properly described therein^ and, furthermore, that it was not entitled to be recorded because not properly acknowledged, and for the further reason that the acknowledgment was not properly attested by the notary public taking it, and still it was an equitable lien on the hearse because the law is that where an abortive attempt has been made to give a mortgage, still it will be given the effect and operation of a mortgage in equity, and, like other equities, is maintainable, not only against the grantor in such mortgage, but as- against all others, except innocent purchasers for value without notice. The applicable principle is that equity considers that done which ought to be done. 19 E. C. L., pp. 273, 274, 275, sections 44, 45. Among other things, it is stated in this authority in section 45 that this principle applies to writings Avhich are incapable under the law of having the effect of a mortgage because of the absence of a seal; in cases of defective registration; insufficient attestation, and irregular acknowledgment — even when those formalities are made essential by statute as a part of the due execution of the instrument. [233] The receiver here stands in the same attitude as the debtor, Meaders, with reference to this mortgage. Meaders could not contest it on any of the grounds mentioned. The receiver is a mere volunteer, with no greater rights than the debtor. He cannot claim any rights as an innocent purchaser for value without notice. The appellant has the same right exactly to enforce its mortgage against the car in question in the hands of the receiver that it had while in the hands of Meaders, the insolvent debtor. Paine v. Hotel Co., 60 Miss. 360; Paine v. Sykes, 72 Miss. 351, 16 So. 903; Bank v. Kretschmar, 91 Miss. 608, 617, 44 So. 930. The receiver took the funeral car with this mortgage on it Avhether he knew it or not and whether he had constructive ijotice by record or not. The case of Frank v. Robinson, 65 Miss. 162, 3 So. 2o3, has no application to the facts of this • case. It was sought in that case by one of the creditors to establish a purchase-money lien on the goods in the hands of tlie receiver. At that time under section 1255, Code of 1880, as amended by act of March 11, 1881 (Laws 1884, chapter 77) the seller of personal property was only given a right to establish a lien for the purchase money on the goods sold; he had no lien from the time of sale. It took a proceeding in court to establish a lien. Now under this statute as amended (section 3079, Code of 1906; Heming-Avay’s Code, section 2436) the seller is given a lien on the goods from the time of the sale. The court held, in view of the fact that the rights of creditors had intervened by virtue of the assignment, the creditor had lost his right to establish a lien for the purchase money. In the present case, although the mortgage may be defective and un-recordable, still, as Ave have seen, it Avas a lien while the hearsgqwas in the hands of a purchaser, Meaders, and continued toi?s, in the hands of the receiver a mere volunteer. .„3Se lien existecl when the received took the hearse under the assignment. y' \ Reversed and remanded.