Schumpert v. Dillard, Pinson & Co. , 55 Miss. 348 ( 1877 )

Simrall, C. J.,

delivered the opinion of the court.

The complainants, appellants in this- court, sought the fore■closure of a mortgage executed by Schumpert, January, .20, 1868, to Pinson, Dillard'& Co., a commercial-firm at Mobile, Alabama. In' August, 1869, this firm ceased•• to do business at Mobile, and transferred its assets for liquidation to the house of Dillard, Pinson & Co., doing business at Memphis, Tennessee, and composed of the same partners as the Mobile firm, with an additional member, Coffin, who had no interest in the Mobile firm. December 1, 1869, Schumpert made a .deed in trust on the same property, to secure a debt of $2,440, to Dillard, Pinson & Co. Colonel Pinion, one of the partners, arranged with Schumpert for the new security, because, as alleged,' of some irregularities in the mortgage — that instrument not containing the individual mames of the members of the firm.

' The complainants further allege that on the-day of-, A. D. 1867, Schumpert conveyed the same land to Wier; that ■the deed was not acknowledged until May 28, 1868, and ivas recorded on the 30th of that month ; but that, this con■veyauce was contrived and designed to defraud the complainants as creditors.

The answer of Schumpert and Wier place the defense on several grounds, viz. : first, that the deed in trust was accepted by the complainants in satisfaction of the mortgage ; second, that the conveyance to Wier is older than the deed of trust, and confers a superior right; that it is not ■erroneous or fraudulent, but was made upon good consideration, and bona fide-, third, that the mortgage, though placed ffirst on record, ought to be postponed to the.elder and superior equity of Wier, because the mortgagees are not purchasers for a valuable consideration, and are, therefore, not protected by the statute ; fourth, that the deed of trust and the note executed by Schumpert in 1869 were accepted by the complainants in full discharge and satisfaction of the original note and mortgage, and the deed to Weir, having been recorded before the trust deed, created an equity.superior to it; fifth, that the mortgage to Pinson, Dillard & Co. is void for uncertainty.

The last proposition lies at the foundation of the complainants’ right, and will be considered first. The exact objection made to the deed is that it does not name the members of the firm individually, and altogether omits their Christian names. Names originally imported something more than sounds for distinction’s sake — as, some natural qualities, features, or relations ; now there is no other use of them than to distinguish families and individuals from all other persons. Lord Bacon, applying that idea to grants, “ which are to receive the most benign interpretation, and most against the grantor,” says: “ If there shall be sufficient shown to ascertain the grantor and grantee, and distinguish them from all others, the grant will be good.” Bac. Abr., title “ Grant,” c.

It is said in Sheppard’s Touchstone, 53, that the names of ■parties are inserted to ascertain them, and if sufficient be shown to point out grantor and grantee, the deed is good. The illustrations given are, a grant by the Duke of Norfolk without his baptismal name ; a grant to T. and his wife, Ellen, when in truth her name ivas Emeline. The .maxim id-cerium est quod cerium reddipotest applies to deeds. A grantee may be described by his office, or relationship. It is immaterial that there is a mistake in the Christian name. -A deed to Robert, Bishop of E., is good, though his real name was Boland. 3 Washb. on Beal Prop. 236, 239.

In Fletcher v. Munson, 5 Ind. 268, the grant was to JBarratt, and the objection was made that the Christian name was •omitted. But the court responded that the deed was delivered to Barratt, with the intention of vesting the legal title, and that the ambiguity could be supplied by proof. In Hofman v. Porter, 2 Brock. 158, Chief Justice Marshall sustained a conveyance to Peter Hofman & Son. Though there were several sons, it was easy to apply the description to the particular son connected with the father in business. It would be no more difficult to ascertain who were the members of the firm of Pinson, Dillard & Co.

If it were conceded that only those partners whose surnames are given took the title, nevertheless the mortgage would inure to the benefit of the firm ; and all interested in the security ■ could join in a suit for its enforcement. We conclude that the objection to the deed is not well taken.

It is further set up by Wier, in his answer, that the mortgagees were not purchasers for a valuable consideration, in such sense as to protect them against his prior equity.

It seems to be settled in our books that the mortgage must rest upon a valuable consideration, something new or contemporaneous. If it be made to secure a pre-existing debt, and there be no change in the evidence of indebtedness, but that remains in its original condition, then, as held in Perkins v. Swank, 43 Miss. 360, there is not such new motive or consideration as to give the mortgagee the protection of the statute. In Hinds v. Pugh, 48 Miss. 272, the attention of the court was particularly directed to what is in law a valuable consideration. The court, adverting to the quantum of it, adopted the ruling in Dessau v. Waddington, 6 Whart. 220, 236 : that “its amount or adequacy is nothing [material] unless it is merely colorable.” “ If the creditor cedes any existing right, or agrees to forbear enforcing his remedy, and gives time, there is a valuable consideration in the legal sense of the term.”

If the creditor abandons a present right of- action, and accepts a new obligation payable in futuro, it is the “ cession of an existing right,” and an extension of time, and is an ader quate consideration for the security; for'the law is satisfied, if the parties themselves have determined that fact, and predicates the new agreement upon it.. If the mortgage of 1868 is parcel .of the arrangement by which the past indebtedness of Schumpert was to be forborne and extended, then it reposed upon a “new contemporaneous consideration,” valuable in law.

The attention of the parties does not seem to have been specially directed to this point in the preparation of the case. We infer from the argument of counsel that Wier has established a superior equity if he has succeeded in proving that the mortgage was given to secure a debt previously contracted, though the note and mortgage were parts of the same transaction, and the extension of time .was given because of the security. As we .have seen, that is a mistaken view of the law.

The note is dated January 16, 18.68., The mortgage purports to have been executed January 20th, four days afteiv wards. The debt was in existence, represented by the note extending the time .of payment from January 16th to the following November, when the mortgage,was executed. The indebtedness for which the note was given had been past due for severalínonths.. We cannot say, in the absence of proof, that the .consideration of the mortgage was the forbearance. Unless so aided, how can.it be inferred that the mortgage, subsequent in date to the note, was parcel of the arrangement .for further time.

The only testimony tending to throw, light on this subject is the answer of Schumpert to the eighth interrogatory. The question was, “ Was the debt complainants'held against you due at the time the first mortgage was given, and was there an extension of time of payment in the contract of executing the ■note and mortgage first given?” It will be observed that the interrogatory unites the note and mortgage as parts of the contract for the “ extension of time of payment.” The ■answer is, “It was due, and there was an extension of time .given.” If the response be construed as affirming that the extension was given in the circumstances assumed in the question, then there is testimony to the point. This witness further states that Mr. Dillard, one of the Mobile firm, came to .see him for the purpose of putting his indebtedness in such shape as that he could raise money on the security in bank. It might be inferred from this that the account of Schumpert was stated up to January 16th, and that the note and mortgage were one transaction, the note dated, however, as of the 16th.

It is quite well settled that, where a debtor has given a personal obligation aside from the mortgage — as, a note, a bond — it must be produced.at the hearing. If there has been a renewal of a preceding note, the creditor, if it does not appear that he has surrendered or destroyed the first, must exhibit both in the foreclosure suit. They constitute essential ■parts to his right of relief. Unless produced, it might be that they had been assigned. Nothing will excuse the non-production except loss or destruction.

In this case neither -the note referred to in the mortgage nor the subsequent one named in the deed of trust were produced, nor was their absence explained. This is not a case where the mortgage is itself the only evidence of the debt. The debts existed in the form of notes. This objection' was made in the Chancery Court before the final decree was passed.

The defendants asked leave of the court to amend their pleadings, so as to plead the statute of limitations. The ground ivas that the six jmars limited for suit on the note' had expired at the time the application was made — not that they had elapsed before the bill was filed.

This suit was brought within the statutory time, and could not be affected by a subsequent bar, which might defeat an action at law oivthe note.

At the final hearing the complainants abandoned that part of their bill which impugned the conveyance made by Schumpert to Wier as a “sham,” and a fraud upon them. Was the second note and the deed of trust made and accepted in payment and discharge of the first note and mortgage? The general rule is that, a mortgage being a security for a debt, no change in the mode and time of payment — nothing short of actual payment or a release — will operate as a discharge. 1 Hill. on Mort. 476, sec. 3; Morse v. Clayton, 13 Smed. & M. 373. A second note and mortgage is no waiver of a prior one made for the same debt. Burdett v. Clay, 8 B. Mon. 287.

The security is for the debt. So long as that can be traced through successive renewals, the mortgage will protect it. It devolved on Wier, by sufficient testimony, to overcome this presumption. Independent of the deposition of Beal, the attorney, which was objected to, we cannot say that the conclusion of the chancellor on the issue of fact was wrong. Wier, in his answer, relied upon the judgment in his favor in the ejectment suit as res adjudícala, a bar to the relief sought in this suit. That suit put to the test the title acquired by purchase at the sale of the trustees, under the deed of 1869, and did not involve the title under the mortgage of 1868. The mortgage was to Pinson, Dillard & Co. (the Mobile firm), of which Coffin was not a member. But the ejectment was brought by Pinson, Dillard & Coffin, purchasers at the trust sale, in all of whom the title by mortgage ivas not vested. We do not think the plea is sustained by the record which was produced.

Other questions are pressed by counsel, but at this stage of the litigation they are unimportant. It is said that Mrs. Pin-son, the widow and executrix of her husband, deceased, ought not to have joined as a complainant. She is the legatee and devisee of her husband. The partnership has been dissolved, and the collection of the debt is sought, for distributibn among the partners ; besides, the title that was in Colonel Pinson, as mortgagee, has been devolved on her. She is not an improper party.

For the error in not producing the notes or accounting for them, the exceptions to the report of the master ought to have been sustained.

The decree will be reversed and cause remanded, with instructions to recommit the cause to the master, before whom the complainants may produce the evidences of indebtedness, •or make proof of loss or destruction.