Liberty Mercantile Co. v. Allen

Anderson, J., delivered the opinion of the court. Appellant, Liberty Mercantile Company, a corporation, filed its bill in the chancery court of Amite county against appellees Lee Allen and Jerome Ford to estab [360] lisli a mortgage executed to it by appellee Allen as a prior lien to that of a mortgage subsequently executed by appellee Allen to appellee Ford. There was a trial on bill, answers, cross-bill of appellee Ford, answer thereto of cross-defendant, and proof, resulting in a decree denying appellant the relief sought by its bill and granting appellee Ford the relief prayed for in his 'cross-bill, but taxing the latter with the cost of the cause, from which decree appellant appeals and appellee Ford cross-appeals. The question is one of priority of the lien of mortgages. It is whether appellant’s mortgage executed in January, 1918, is prior as to the indebtedness incurred thereunder during the year 1919 to the mortgage of appellee Ford executed in January, 1920. The decision of the question turns upon the meaning of the language used in appellant’s mortgage describing the indebtedness it was given to secure. The language of the mortgage in question follows: £ ‘Witnesseth: That whereas Lee Allen and wife, party of the first part is indebted to the party of the third part in the sum of four hundred eighty-eight and seventy hundredths dollars on their promissory note of even date, and whereas said party of the first part expects said party of the third part to advance him money, and sell him supplies and merchandise during the year 19.18, not to exceed four hundred dollars at such prices as may be agreed upon at the time of delivery, or at the usual and customary credit prices in the town of Liberty, Mississippi; and whereas said party of the first part has agreed to secure the payment of said indebtedness, as also any further amounts that may be advanced as aforesaid and not mentioned herein, and any and all other indebtedness that is or may become due during the life of this contract. . . . It is further distinctly understood and agreed between the parties aforesaid, that this deed is made and intended to secure any advances on account [361] of the crop of 1918 made after the maturity thereof, aud not mentioned herein, or any indebtedness of the first party assumed or paid by third party. . . . ” Appellant contends that the provisions of the mortgage in question are broad enough to cover not only the indebtedness of the mortgagor to the mortgagee for the year 1918, hut for the years following “during the life of the contract. ’ ’ Appellee Ford contends, on the other hand, that said stipulation was only intended to secure the mortgagor’s indebtedness for the year 1918, and to sustain that position relies principally on thé case of Gray v. Helm, 60 Miss. 131. The mortgage in that case in its first clause broadly covered all future advances by the mortgagee to the mortgagor of whatever description and without regard to their date. This clause, however, was followed by another in this language: “It is further distinctly understood and agreed between the parties aforesaid that this deed is made and intended to secure any advances on account of the crop of 1880, made after the maturity thereof and not mentioned therein.” The court said that the first clause secured all future advances without regard to their date and standing alone would bring the case fairly within the principle announced in Witczinski v. Everman, 51 Miss. 841, hut held that the first clause was modified and limited by the other clause which was intended to secure alone advances made to the mortgagor by the mortgagee ‘1 on account of the crop of 1880.” The first clause in the mortgage in the present case is likewise broad enough to cover not only the indebtedness of the mortgagor for the year 1918 but any further indebtedness “during the life of this contract.” The question is whether that language is modified and limited by the last clause in which it is provided that said mortgage was “intended to secure any advances on account of the crop of 1918 after the ma [362] turity thereof and not mentioned herein, or any indebtedness of the first party assumed or paid by third party. ’ ’ Taking the mortgage as a whole, there appears to have been one outstanding purpose of the parties, and that was that the mortgage was given to enable the mortgagor to make a crop during the year 1918. The last clause limits the indebtedness to be secured to that incurred during the year 1918 for the purpose of enabling; the mortgagor to make a crop, whether such indebtedness should be incurred before or after the maturity of the crop; and such further indebtedness as the mortgagee might pay for the mortgagor to others in order to enable the mortgagor to enter upon the making of said crop of 1918. Although the language of the mortgage in question in the present case is somewhat different from that involved in Gray v. Helm, supra, we are unable to see any substantial difference in their meaning. By the phrase “during the life of this contract” the parties, we think, meant the year 1918. We are of opinion that appellant’s mortgage only covered the indebtedness incurred by the mortgagee during the year 1918 and as to any other indebtedness the mortgage of appellee Ford is prior. The cross-appeal of appellee Ford only involves the cost of the cause, his contention being that the court erred in taxing him with the costs because he had tendered to-appellant both before and after appellant filed its bill the small balance due appellant under its mortgage for the year 1918; that this tender was a legal tender, and therefore the court should not have taxed him with the costs. Chancery courts are given such broad powers as to the taxation of costs by section 956, Code of 1906 (section 665, Hemingway’s Code), that we are unwilling to disturb the decree as to the costs. That statute provides that the chancery court shall have power to tax either party with the costs or divide the same between the parties as may appear equitable. Even though it be true that appellee Ford made a tender of the balance due [363] appellant on account of the year 1918 and that such tender was sufficient to prevent the recovery of costs ordinarily, still the decree taxing the costs in this case may have been justified by said statute; therefore we decline to disturb it. Affirmed on direct and cross appeals.