McLarty v. Ashmore

Cook, J., delivered the opinion of the court. Appellant Hawkins, who resided at Oxford, in Lafayette county, Miss., sold a pair of mules to T. 0. Dorsett, who resided in Pontotoc county. At the time of the purchase of the mules, Dorsett executed and delivered to Hawkins a deed of trust on the mules to secure the payment of his promissory note for a balance of the purchase price of the mules, and this deed of trust was promptly filed for record in Lafayette county. At the time of the sale of the mules, Hawkins believed that Dorsett was a resident citizen of Lafayette county, and that the mules Avould remain in that county, but, in fact, Dorsett was and had been for some time a resident citizen of the adjoining county of Pontotoc; his residence and barn being near the line dividing Lafayette and Pontotoc counties. Dorsett kept the mules in his possession in Pontotoc county for about one month, when he sold them to one Alexander, who also lived in Pontotoc county. Alexander then carried the mules to the toAvn of Pontotoc and sold them to the appellee, Ashmore, for a cash consideration, and the mules thereafter remained in the possession of appellee in Pontotoc county. At the time appellee purchased the mules he had no actual notice of appellant’s deed of trust. Appellant Hawkins knew of the sale of the mules to Alexander before the appellee, Ash-more, bought them, but he made no effort to have the trustee in his deed of trust take possession of the property and foreclose the trust deed, and he did not file his deed of trust for record in Pontotoc county until after the ap-pellee had purchased the mules and had refused to sur [741] render them on demand. Appellee having refused to surrender possession of the mules, the deed of trust was filed for record in Pontotoc county, and appellant then instituted this suit to recover possession of the property. By agreement the cause was tried before the court, without the intervention of a jury, on an agreed statement of facts, and from a judgment dismissing the suit this appeal was prosecuted. The only question presented for decision is whether, under the facts here, the record of the deed of trust in Lafayette county constituted constructive notice to ap-pellee. Section 2787, Code of 1900 (section 2291, Hemingway’s Code), provides that: “All deeds of trust and mortgages whatsoever, shall be void as to all creditors and subsequent purchasers for a valuable consideration without notice, unless they be acknowledged or proved and lodged with the clerk of the chancery court of the proper county, to be recorded in the same manner that other conveyances are required to be acknowledged or proved and recorded.” Section 2785, Code of 1906 (section 2289, Hemingway’s Code), provides, in part, as follows: “Every Avriting respecting the title to personal property Avhich by law ought to be recorded, shall be recorded in the office of the clerk of the chancery court of the county in Avhich such property may remain.” Under the latter section, in order for the record of the trust deed to constitute constructive notice to subsequent .purchasers for a valuable consideration, it was necessary that it be recorded in the county where the property covered thereby avus to remain. At the time of the purchase of the mules by Dorsett, he actually resided in Pontotoc county, and it is clear from the record that appellant understood that the mules Avould be carried to Dorsett’s residence, and that he expected them to remain in the county in which the purchaser resided, and, since the mules Avere to remain in Pontotoc county, it was necessary [742] that appellant record his deed of trust in that county in order to preserve his lien against subsequent purchasers for a valuable consideration, without actual notice thereof. Acting under a mistaken belief that the grantor in the deed of trust resided in Lafayette county, and that the mules Avould remain in that county, appellant failed to record the deed of trust in Pontotoc county, and he cannot now maintain this suit against appellee, who was a subsequent purchaser for value without notice, either actual or constructive. For a reversal of this case appellant relies principally upon the cases of Bogard v. Gardley, 4 Smedes & M. 302, and Elson v. Barrier, 56 Miss. 394, but these cases deal only with the proposition of the removal of personal property from the county in which a deed of trust thereon is properly recorded to another county, by the permission of the beneficiary or trustee, and therefore are not applicable to the facts of this case. Affirmed.