Crisler v. Whadley , 102 Miss. 755 ( 1912 )

Reed, J.,

delivered the opinion of the court.

This case is about a mule named Alice. She was owned by Jim Cage, who included her in a deed of trust executed by him and his wife to secure an indebtedness owing to E. M. Pickett. Mr. Pickett assigned the deed of trust to Pickett-Pranklin Company, a mercantile corporation, his successor in business. Cage was doing business with the Pickett-Pranklin Company, who held the deed of trust, which covered not only the live stock but also his crops for the year 1909. Cage abandoned his crops and the mule Alice, and removed from the premises he was occupying and cultivating. The PickettPranklin Company thereupon took possession of the crops and the mule. Afterwards, the Pickett-Pranklin Company traded Alice to Rosa Collins, one of the appellants, for a mule named Willie. Appellant Collins had possession of Alice from January to June, 1910. Willie was sold to Billy Procter. It appears from the record that Proctor included the mule Willie in a deed of trust executed by him in January, 1910, to secure an indebtedness owing the Pickett-Franklin Company. Appellant Eosa Collins executed a deed of trust to appellant J. B. Crisler, trustee, to secure an indebtedness owing to B. Crisler, in which was included the mule Alice. It seems from the testimony that Proctor became dissatisfied with the mule Willie and returned him to the Pickett-Franklin Company, and thereupon the company demanded that appellant Collins should return Alice, and' that the trade be declared off. This appellant Collins refused to do.

The deed of trust executed by Cage and wife authorizes the third party therein, E. M. Pickett, or any lawful holder of the indebtedness, to at any time appoint a trustee in the place of the one named in the deed of trust. It also provides that at the request of the third party, or the legal holder of the indebtedness, the trustee shall take possession and deal with the property incumbered. On June 23, 1910, the Pickett-Franklin Company,” through H. L. Franklin, president, by entry of the margin of the record of the deed of trust, appointed appellee, W. T. Whadley, trustee in the place of J. D. Russell, the original trustee, deceased. Whadley, the substituted trustee, on the next day, June 24, 1910, brought replevin suit for the recovery of the mule Alice. It is clear that the Pickett-Franklin Company is estopped from bringing suit against appellant Rosa Collins for the recovery of the mule. It was decided in the case of Tobin v. Allen, 53 Miss. 563, that: “Where one by his words or conduct willfully causes another to believe the existence of a certain state of things, and thereby induces him to act on that belief, so as to alter his condition, the former is precluded from averring against the latter a state of things different from that represented. ’’

It is contended that the Pickett-Franklin Company is not a party to this suit, and that the case cannot be controlled by any doctrine of estoppel which would apply do it; that, no matter what may be said of the facts showing that the Pickett-Franklin Company had made a trade with appellant Collins whereby the company sold and delivered the mule to her, this suit is only brought by the trustee for the sole purpose of obtaining the legal possession of the property. It will be noted from the foregoing statement of the facts that the mule had been .abandoned, its possession given up by Cage, the original owner and mortgagor, and that the Pickett-Franklin Company, the mortgagee, had received the possession of the mule, and dealt with the animal as its own. Would not all this amount to a surrender of the property by the mortgagor to the mortgagee, so that its value might "be applied to the indebtedness secured by the lien of the deed of trust? Certainly the Pickett-Franklin Company acted as if this was true. All of the dealings with the mule go to show that the animal had been in effect turned over under the deed of trust to the Pickett-Franklin Company the holder of the indebtedness. The original owner of the mule, Jim Cage, is not claiming any title or right in the animal. The only necessity for a trustee’s acting in the case would be to foreclose the deed of trust and sell the animal. The possession of the mule was already out of Cage, the mortgagor, and in the Pickett-Franklin Company, the mortgagee. Appellee Whadley, as trustee, was not acting at the request of Cage, asking that the mule be taken from appellant Collins, but he was appointed by the Pickett-Franklin Company, and immediately, according to the terms of the deed of trust, at the company’s request, proceeded to recover possession of the mule. For whom? Not for Cage, but for the benefit of the Pickett-Franklin Company. Certainly it can be concluded that the party who is really interested in the success of this suit and the recovery of the mule is the Pickett-Franklin Company, and that appellee Whadley, as trustee, is only nominally a party, and acting for and in behalf of the Pickett-Franklin Company.

After a full consideration of all the facts of this case, it must be decided that the appellant should be permitted to present to the jury as their defense the facts shown by the testimony and exhibits in this case. It appears in the case of Walton v. Hollis, 16 South. 260, this court has held that, where a beneficiary is estopped, a trustee is likewise estopped in the suit for the recovery of personal property under the terms of the deed of trust.

Reversed and remanded.