Tufts v. Stone , 70 Miss. 54 ( 1892 )

Woods, J.,

delivered the opinion of the court.

Was the title to the property in controversy in the appellant, and possession and use in Martz ? Or had Martz such title as would have authorized its mortgage by him, in any event ? Can it be said that, under the recorded contract made by him, he may be regarded as substantially a mortgagor in possession ?

The case is freed from doubt as to the proper answers to these inquiries, if, refusing to stick in the letter, we look through mere forms, and ascertain what the intent of Tufts and Martz was when the contract was entered into. It is certain that Martz, by his purchase, was to secure the soda-fount and apparatus, and Tufts was to have, as compensation, the price of §800, evidenced by thirty-two promissory notes of the purchaser for §25 each, payable monthly, and that he reserved title simply as a security for the purchase-price-The contract distinctly declares that “ said notes [meaning Martz’s thirty-two notes] were given by me, Martz, for certain soda-water apparatus conditionally purchased of said Tufts.” Martz had such title and interest in the property when this litigation arose as would have been protected in a court of equity. He had paid to Tufts about $500 in pursuance of his agreement, and would -the latter be permitted, in equity, to retain this $500 and retake absolutely, as his own, tbe property for which the $500 had been paid? Rather, would not Tufts have been allowed to resort to his security only so far as the same might be necessary to satisfy the balance due from Martz ? Suppose Martz had paid thirty-one of the thirty-two notes, and by disaster had been unable to pay the remaining note of $25, would any court of conscience tolerate an assertion of Tufts’ right to hold on to the $775 already paid him, and to take as his own the property also ? He may resort to the security he has taken, by reservation of title, for payment of the balance due him just as any mortgagee may in like case. But the case falls, in its facts and-features, wholly within the rule announced in Dederick v. Wolfe, 68 Miss., and renders further remark superfluous.

While the trader must unite in himself title and possession of property used in his business, he may surely encumber the same by mortgage, and, with the instrument acknowledged and recorded,- his mortgagee must not be skipped of his rights under the mortgage. See Dodds v. Pratt, 64 Miss.

Treating the written and acknowledged and recorded contract as in its essentials a mortgage, it was properly recordable, and excluded all idea of its being classed with those secret claims which it was the -purpose of § 1300, code-1880, to disallow. In its form and letter, too, we think it was properly subject to recordation, for it purports to be a reservation or limitation of a use or property, by way of condition, reversion or remainder in goods or chattels, the possession whereof is in another, and is embraced in the concluding clause of § 1293, code 1880. This conclusion is implied plainly in Thomas v. Grand Gulf Bank, 9 S. & M., 201.

Reversed.