Opinion
No. 29227.
March 30, 1931. Suggestion of Error overruled May 18, 1931.
1. CONTRACTS.
Writing is incomplete as agreement where blanks on essential matters are left unfilled until such blanks are lawfully filled or supplied from other parts of writing itself.
2. CHATTEL MORTGAGES. Deed of trust on crops securing note, in view of blanks in future advances clause, held not to secure future additional advances.
Deed of trust on crops securing note was given. All blanks in deed except those appearing in clause providing for future advances were filled. Deed was recorded without filling in blanks in such clause.
APPEAL from chancery court of Humphreys county; HON. J.L. WILLIAMS, Chancellor.
H.F. Jones, of Belzoni, for appellants.
The deed of trust for the year 1928 was a printed form, and it will be observed in filling it out by inserting names, dates, descriptions into the blank space, the second clause, in which it is claimed provision was made for future advances, that this clause is incomplete, the blanks were neglected, or intentionally left unfilled. The appellee, or her agent, who prepared the said deed of trust and sent it to John Holmes for his execution, did not consider this clause herself, and did not give enough attention to it to even insert therein the words necessary to carry a proper meaning. This language is ambiguous.
The truth is obvious from a reading of this instrument, that neither the appellee nor the said John Holmes expected to secure by this instrument, other than the sum of two thousand dollars.
In view of the fact of the mortgagee having prepared her own mortgage, being intelligent and of good business acumen and understanding, and wording it in its entirety the intents of the instrument should be strictly construed against the mortgagee in such a case, as she was in a position to dictate terms, and did so dictate them.
11 C.J., 492-493.
The court may have, upon a proper proceeding, have perhaps reformed and rewritten the clause providing for security for monies to be advanced to some person, but this was not done, and no correction of the said deed of trust has been asked for, and none has been made by the court.
H.M. McIntosh, of Collins, for appellee.
A deed of trust that was executed to secure a definite amount and providing in the usual form as follows: "Said parties of the first part have agreed to secure said indebtedness and also any further amounts that may be advanced as aforesaid and not mentioned herein," cannot be confined to the amount stated therein without any showing of fraud or deceit in the procurement.
Coombs v. Wilson, 142 Miss. 502, 107 So. 874.
W.D. Womack, of Belzoni, for appellee.
The weight of authority is that an instrument must be construed as a whole with a view of arriving at the intention of the parties, even though there be an ambiguity in the paragraph of the deed of trust dealing with supplies, the evidence, the situation and action of the parties to the instrument leads to but one logical and legal conclusion and that is it was the intention of the parties to the instrument that it secured the indebtedness of two thousand dollars and all additional and future advances and was so determined by the chancellor.
11 C.J., p. 492, para. 155.
The overwhelming weight of the authorities hold mortgages of this character good as covering future advances whether or not such advances are provided for in the instrument so long as there is enough information appearing on the face of the instrument to put third party upon inquiry as to the true extent of encumbrance.
Summers Brannin v. A. Roose Company, 42 Miss. 749; Collins v. Carlile, 13 Ill. 254; Craig v. Tappin, 2 Sand. Ch. (N.Y.) 78; Bank of Utica v. Finch, 3 Barb. Ch. (N.Y.) 293; Kramer v. Trustee of Farmers' Mechanics' Bank of Steubenville, 15 Ohio, 253; Chapin v. Thompson, 23 Hun. (S.C.) 14; Thomas v. Kelsey, 30 Barb. (N.Y.) 286; Robinson v. Williams, 22 N.Y.C.A. 380; Ketchum v. Jaucey, 23 Conn. 123; Mix v. Cowles, 20 Conn. 427; Bell v. Fleming, 1 Beas. N.J.P. 13; Commercial Bank v. Cunningham, 24 Pickering (Mass.) 274; Burdett v. Clay, 8 B. Mon. 287; Mix v. Coles, 20 Conn. 420; Appeal of Bank of Montgomery County, 36 Penn. State 170; Witczinski et al. v. Everman, 51 Miss. 841; Gray v. Helm, 60 Miss. 131.
A mortgage need not itself disclose that it was given to secure the payment of future advances.
Tully v. Harloe, 35 Cal. 302, 95 Am. Dec. 102.
It is not essential that a mortgage to secure future advances shall contain a stipulation that they shall be made or that the limit either in time or amount shall be fixed.
Alvord v. Mallory, 10 Ky. L. Rep. 590; Langerman v. Puritan Dining Room Company, 21 Cal.App. 637, 132 P. 617; Moore v. Terry, 66 Ark. 393, 50 S.W. 998; Maltz v. Arik, 76 Conn. 388, 56 A. 630; Bunker v. Barron, 93 Me. 87, 44 A. 372; Bronson v. Dawson State Bank, 175 S.W. 438; McDaniels v. Colvin, 16 Vt. 300, 44 Am. Dec. 512; Western National Bank v. Jenkins et al., 131 Md. 239, 101 A. 667, 1 A.L.R. 1577.
J. Morgan Stevens, of Jackson, for appellees.
The writing is incomplete where blanks as to essential matters are left in it: "unless they can be supplied from other parts of the writing itself."
13 C.J. 308.
The Mississippi court long ago committed itself to the general rule that a trust deed providing for future advances is a perfectly valid contract and that all of the contract with reference to future advances need not be set forth in detail; that it is sufficient that mortgage to secure advances gives information as to the extent and purpose of the contract, so that a purchaser or any other junior creditor may by ordinary diligence ascertain the extent of the incumbrance. It is not necessary for the mortgage to specify any particular or definite sum which it is to secure; it is not necessary for it to be so complete as to preclude the necessity of all extraneous inquiry.
Witczinski v. Everman, 51 Miss. 841; Gray v. Helm, 60 Miss. 131; Combs v. Wilson, 142 Miss. 502, 107 So. 874.
The appellee sued the appellants in the court below for the value of cotton purchased by them, on which she claims a lien. She also sued the appellants in the circuit court, in replevin, for the recovery of several bales of cotton purchased by them on which she claims the same lien. This suit was removed to the court below, and there consolidated and tried with the original suit filed therein. There was a decree for the appellee. The cotton was grown by Holmes who had given a deed of trust on crops to be grown by him, to the appellee, to secure the payment of a promissory note for two thousand dollars executed by him to the appellee. A printed form was used for this deed of trust, in which there were blanks to be filled when the deed of trust should be executed. All of these blanks except such as appear in the clause providing for future advances were filled. After reciting the execution of the note of two thousand dollars, the deed of trust proceeds as follows: "And, whereas said part ____ of the first part expects said ____ to advance ____ money and sell supplies and merchandise during the year 192_, at such prices as may be agreed upon at the time of delivery or the usual customary credit price in the ____ of ____, Miss. and whereas, said parties of the first have agreed to secure the payment of said indebtedness, as also any further amounts that may be advanced as aforesaid and not mentioned herein." It then conveys the crops to be grown by Holmes on certain land to a trustee, with power to sell and apply the proceeds thereof to "pay what may be due said Mrs. S.A. Smith for money advanced and supplies sold and delivered to us as aforesaid." This deed of trust was executed on the 12th day of April, 1928, but was not recorded until October 5th thereafter.
Holmes sold part of the cotton raised on the land, described in the deed of trust, prior to October 5th, and thereafter sold the cotton here in controversy to the appellants. The note secured by the deed of trust has been paid, and the debt alleged by the appellee to be due her by Holmes and secured by the deed of trust is for additional advances made by her to Holmes during the year 1928.
Several questions are presented by the record, but one lying at the threshold of the case is whether the deed of trust covers advances made by the appellee to Holmes in addition to such as are evidenced by the two thousand dollar note.
The omission to fill in the blanks in the future advances clause of the deed of trust indicates an intention that that clause should not become operative, unless an agreement can be implied therefrom that the grantee or cestui que trust should fill the blanks in accordance with the intention of the parties. We are not called on to decide whether such an implication here arises, for the grantee or cestui trust did not attempt to assert such a right, but recorded the deed of trust without filling the blanks. "A writing is incomplete as an agreement where blanks as to essential matters are left in it, unless they can be supplied from other parts of the writing itself," 13 C.J. 308, or unless and until such blanks are lawfully filled, Williams v. Crutcher, 5 How. 71, 35 Am. Dec. 422.
The decree of the court will be reversed, and both causes will be dismissed.
Reversed and dismissed.