Britton & Mayson v. Criswell

Citations

• 63 Miss. 394

Syllabus

<p>1. Mortgage. Reservation of rights to mortgagor. When fraudulent.</p> <p>In a mortgage covering a stock of goods and merchandise, the reservation to the mortgagor of the right to deal with the property mortgaged as his own must be so expressly made that evidence to the contrary would be excluded as contradicting the writing, to warrant a court in declaring the mortgage fraudulent on its face because of such reservation.</p> <p>2. Same. Understanding as to the use of goods and application of payments. Evidence aliunde of fraud.</p> <p>Though not appearing on the face of such mortgage, if it be unmistakably shown by evidence aliunde that there was an understanding between the mortgagor and mortgagee that the former should, after the execution of the mortgage, or before, continue to deal with! the mortgaged property virtually as his own, and that the latter might apply any payments, whether realized from the sale of the mortgaged goods or otherwise, to any debt he might hold against the mortgagor, then the court may declare the mortgage fraudulent and void.</p> <p>3. Same. Annual renewals. Continuous lien.</p> <p>Where there are annual renewals of a mortgage, with no intention on the part of the mortgagee to surrender his lien on the property, but merely to change the form of his security, then such lien must be treated as continuous under whatever form it existed.</p> <p>4. Judgment. For improper plaintiff on valid debt. Waiver by defendant. Objection by creditors.</p> <p>Where a judgment is obtained on a valid claim, against a proper person, in the name of a party not authorized to sue on such claim, it is not competent, after the rendition of such judgment, for the creditors of the defendant in the judgment to deny that the plaintiff was the owner of the claim sued on at the time of the rendition of the judgment.</p>