Steiner v. Rotenberry , 127 Miss. 569 ( 1921 )

Ethridge, J.,

delivered the opinion of the court.

The appellant was defendant below and the appellee was the plaintiff. The plaintiff brought a suit against the defendant for the value of certain cotton claimed, by the plaintiff to have been embraced in a deed of trust given by one Essex Howery to J. C. Wilson, trustee, to secure a debt due the Panola Mercantile Company, a partnership composed of J. S. Goff, W. H. Ming, F. W. Bailey, and S. C. Bailey. This deed of trust was not acknowledged before an officer, but was witnessed by L. M. Cauthen, who was the bookkeeper and employee of the Panola Mercantile Company. This deed of trust Avas dated the 2d day of March, 1920, and Avas filed for record on the Gth day of March, 1920, the subscribing witness having made affidavit in due form for the execution and delivery of .the said deed of trust. •

The defendant had a deed of trust álso upon the crops given on the 19th day of January, 1920, and acknoAvledged on the same day before a notary public, but Avhich was not filed for record until the 26th day of March, 1920. It appeared on the hearing that the defendant bought or secured possession of cotton, and sold or converted the same cotton to its use to the value of two hundred eight dollars and eleven cents, which Avas less than the amount due under the plaintiff’s deed of trust. Each side requested a peremptory instruction, and the court gave the peremptory instruction requested by the plaintiff.

Prior to the bringing of the action by the plaintiff the foLlóAV'ing substitution of trustees Aims made, to wit :

“J. G. Wilson, trustee, refusing to act, the Panola Mercantile Company hereby appoint E. M. Rotenberry to act in his stead.

“This the 5th day of January, 1.921.

“Panola Mercantile Company,

“Per F. W. Bailey.”

It is contended by the appellant that the court erred in granting the peremptory instruction for two reasons: First, because the appointment of a substituted trustee was void because the appointment was not signed by each member of the partnership of the Panola Mercantile Company. The provision for appointment of the substituted trustee is as follows: “If the said trustee should, from any cause, refuse or become unable to act then the said creditor may appoint some one to act in his place who shall have all the powers herein conferred on said trustee.”

The contention is that F. W. Bailey, who was the manager of the said Panola Mercantile Company, did not have the light to make the appointment unless the power was made and executed and signed by the other three members of the partnership. We do not .think this contention is well taken. The proof shows that F. W. Bailey was manage!' of the firm and a partner therein. The deed of trust was given in the partnership business. We think that he had the power to make the appointment in the name of the firm because he is the agent, for the purpose of the firm’s business, of the other partners, and can act for the partnership in all matters affecting the partnership business so as to bind thé said partners and third persons dealing with them in the manner that the debtor, Essex Howé-ry, was dealing with them. We hold, therefore, that the appointment of the substituted trustee was valid.

Second, it is contended that the subscribing witness to the plaintiff’s deed of trust was incompetent as a subscribing Avitness because she was an employee of the Pan-ola Mercantile Company. We think this contention is without merit.. In order to disqualify a person as a subscribing Avitness or as an officer to take an acknowledgment, such subscribing Avitness or officer must have some legal or equitable interest in the debt secured or the property conveyed, or be entitled to some of the fruits of the transaction. We do not here decide that such interest would disqualify a person Avho had such-interest, preferring to leave that question open until Ave are presented with it for decision. We do decide, however, that. Avhere such witness has no interest, legal or equitable, she is not disqualified merely because she is an employee of one of the parties to the instrument.

The judgment is affirmed.

Affirmed.