Merchants' & Farmers Bank v. Byrd ( 1923 )

Ethridge, J.,

delivered the opinion of the court.

The appellant sued out an attachment against George M. Long, doing business under the firm name of Farmers’ Progressive Creamery in the town of Newton, Miss.,-and levied upon certain real estate and personal property under a writ of attachment. The appellee filed a claimant’s issue. The appellee filed a, claim to the property levied upon by virtue of a deed of trust given by George M. Long to the appellee’s trustee to secure a certain indebtedness to the Newton Bank of Newton, Miss. The claimant’s affidavit was answered by the appellant, wherein its is averred that the appellee had no title to the property because the description was void. The description contained in the deed of trust as to the personal property which is here in controversy is as folloivs:

“One Jensen pasteurizer, one Disbrown churn, one De-Lavel emulsifier, one starter can, one ice cream freezer, one Manning can dryer, one upright boiler, one six horse power steam engine, one gasoline engine, one packing box for ice cream, one cork insulated cold room and equipment, one ice machine, together with pumps, boilers, etc., one Burroughs adding machine, one Remington typewriter, one mimeograph, two rotary pumps, all located in the town of Newton, and being the only property of like kind owned by grantors.”

The circuit court held this description sufficient, and authorized the admission of testimony to identify the property whcli the claimant introduced, the witness for the claimant testifying as to the identity of the property involved, where located, etc. The court granted a peremptory instruction to the plaintiff, and judgment was entered upon the verdict for the claimant from which judgment this appeal is prosecuted.

It is insisted by the appellant that the description contained in the deed of trust above set out is void, and that parol evidence is not admissible to aid the description. It is insisted that the deed of trust was signed by George M. Long and Mrs. Eula Long, and the Farmers’ Progressive Creamery, and that there is uncertainty both as to the property and as to the owner of the property. The Progressive Creamery is not a party, but is a mere trade-name representing George M. Long, or rather the trade-name under which Long did business. The proof shows that the property was the property of Geo. M. Long, and that his wife, Eula Long, signed the deed of trust Avith him. The closing clause of the descriptive paragraph of the deed of trust “and being the only property of like kind OAvned by the grantors,” furnishes the certainty to the description. The rule is that that is certain Avhich is capable of being made certain, and Avhere the deed on its face carries a clause of this kind shoAving that the deed passes all of the property that the grantor then owns, it is sufficiently certain to sustain the validity of the deed of trust, and either parol or written evidence may be offered to show what property the vendor owned at the time of the execution of the deed of trust.

In Harmon v. James, 7 Smedes & M. 111, 45 Am. Dec. 296, the deed conveyed all the vendor’s lots in a certain town Avithout particularly describing the lots. The court held that proof could be offered to shoAV what property the grantor really owned, and the lot involved in that malting of the deed of trust, was capable of identification, and the validity of the description was sustained.

In Russell v. Stevens, 70 Miss. 685, 12 So. 830, a deed of trust describes the property as — “the entire crops of corn, cotton and other agricultural products to be raised and gathered by the grantor, his family or employees under him, during the year 1891, on any lands cultivated or controlled by the grantor in Olay county, Mississippi.”

And this description was held sufficiently definite, and the validity of the deed of trust was upheld. See also, Wasson v. Connor, 54 Miss. 351, where the description “his entire crop of cotton, etc., grown by him during the present year,” was upheld.

In Spears v. Robinson, 71 Miss. 774, 15 So. 111, the deed of trust described the land and conveyed to the grantors “crop of cotton, except four bales, which is reserved and agreed upon/’ was held not void as to the cotton. If there was uncertainty it was in the exception and not in the description of the property. See, also, McAllister v. Honea, 71 Miss. 256, 14 So. 264; Wetlin v. Mount, 73 Miss. 526, 19 So. 201.

The judgment of the court below is affirmed.

Affirmed.