Evans v. Forstall , 58 Miss. 30 ( 1880 )

George, J.,

delivered the opinion of the court.

There is a serious conflict in the evidence. The chancellor believed the evidence of the appellees and dismissed the appellant’s bill. We cannot say that the chancellor erred in giving credit to the .witness for the appellees. The testimony of this witness established this state of facts: That appellant Evans came to Bourgess, one of the appellees, and told him that Abercrombie would ship his house two hundred bales of cotton, and that Abercrombie would want some bagging and ties and a small advance in money; that Evans said nothing about a lieu for rent in favor of the landlord on Abercrombie’s cotton, nor did he intimate that he himself had a mortgage on it. Bourgess made the advances that Abercrombie wanted, to the amount of $700, and received seventy-six bales of cotton for shipment to his house. He then learned that he-could not ship the cotton till he paid $2,400 for the rent-of the land on'which the cotton was raised. This was as much as the value of the cotton at that time, but Bourgesspaid the rent, hoping for a rise in the price of cotton to secure the advances he had made. The house held the cotton from January till April, and there was an advance, and the cotton sold for enough to pay the rent and the other advances, leaving $147.29 surplus. . Evans said nothing about his mortgage till after the sale of the cotton, and then demanded all the-proceeds of the cotton except the $2,400 paid for rent. The appellees paid him the $147.29, and refused to pay any more.. It is now urged that, as Evans’ mortgage was recorded, appellees were bound to take notice of it. This is true, ordinarily ; but we think, under the facts above set out, that Evans must be held to have waived his rights under the mortgage so far as Bourgess made advances on the cotton. Bourgess was, in fact, ignorant of the mortgage, and the conduct of Evans was such as to induce him to believe that he had no interest in the cotton. He cannot now be heard to assert a claim which would defeat rights which grew up under a supposition, produced by himself, that he had no interest in the cotton. A purchaser is not bound to consult the records for a mortgage when the mortgagee, by his acts or declarations, asserts he has no claim.

Decree affirmed.