Pearson v. Kendrick , 75 Miss. 416 ( 1897 )

Whitfield, J.,

delivered the opinion of the court.

It is clearly shown by the testimony that every one of the trust deeds the foreclosure of which is affirmatively sought by the appellant, was executed at a time when no sufficient privilege tax had been paid. Block never had a license till February 1, 1889; that trust deed was made January 4, 1889; W. H. Jeffreys & Co. never at any time had a license; W. H. Jeffreys, individually, had no license till March 1, 1890, and his trust deed was made, as the one to Jeffreys & Co. recited, January 22, 1890. Burbridge & Houston got a license November 16, 1891, and illegally had it recite that it was to date from January 1, 1891, and their first trust deed was made January 27, 1891; that firm got another license April 26, 1892, and illegally had it recite that it was to run from January 1, 1892, and the trust deed of that year was made March 5, 1892; that firm got another license April 25, 1894, and had it illegally recite that it was to run from January 1, 1894, and the trust deed of that year was made April 7, 1894. It was, as were all of them, effective from the first day of the month when issued. There was no trust deed in 1893.

In addition to this, it is overwhelmingly established that all these tax privileges were for insufficient amounts. This result follows without reference to the testimony of Judge Butt. As to that testimony, it is clearly settled, by statute and decisions, that, as no objection was made to it in the court below on any ground whatever, the witness not even being cross-examined, that this court cannot notice objections interposed here for the first time. Code 1892, § 1758; Jones v. Loggins, 37 Miss., 546. Vigilantibus non dormientibus, etc. The $3,075 note was for money loaned by the firm of Houston & Burbridge. The note and trust deed are both payable to that firm, whose charges were two and one-half per cent, commission for advancing it; and the deed provided further that it was to secure also supplies to be advanced during that year, 1891. They were country merchants, doing the usual, well-known business of country merchants, on a credit, and they were not shown to be engaged in any other business. That firm got the benefit of two-thirds of the $3,000 in payment of alleged indebtedness of appellees to Jeffreys & Co. It is entirely immaterial that Bur-bridge & Houston got the money from Moore on this trust deed as collateral security. Moore had been fully paid, and had surrendered the trust deed to Burbridge & Houston, and he has nothing to do with this controversy. The question is, who loaned this money to appellees ? The firm of Burbridge & Houston manifestly was their lender, and it was no concern of theirs where that firm got the money. They did not deal with Moore. The suggestion that the money was paid to Jeffreys & Co., a so-called third party, is utterly without merit. Houston shows that the alleged debt of appellees to Jeffreys & Co. became the property of Houston & Burbridge before the execution of this note and trust deed. His subsequent change of base cannot avail. It does not satisfy us. We think, besides, appellees’ account of the purpose of this loan is the correct one. This advancing of the sum of §3,000, under the facts in this record, falls clearly within Bowdre v. Carter, 64 Miss., 221. There is no merit in any of the other suggestions on this point. Merchants who defraud the public revenues and refuse to pay their just taxes, occupy poor ground for assailing the interposition by the debtor of their failure to comply with positive law — the exercise by the debtor of a right secured by law.

The decree is clearly correct. We decide the case upon the failure to pay the privilege taxes, deciding nothing else.

Affirmed.