answer denying notice, and we withhold concurrence in full view of Harper v. Reno, Freem. Ch. 323, cited by them, and in full view of Greaves v. Atkinson, 68 Miss. 598, 10 South. 73. In Harper v. Reno the parties were being dealt with at first hand, and the complainant Harper charged in his bill that he was the holder of notes of Nobles from Reno, that judgments in favor of other parties were recovered against Reno and sale of the same land was made under execution, and that Nobles procured one Johnson to become the apparent buyer, in order to defeat Harper's lien, and in fact furnished him the money to make the pretended purchase, and the prayer was for foreclosure of the trust deed against the land as being in truth the land of Nobles. Of course, in that case, although the bill did not specifically say that Johnson had notice, still it was of the very essence of his claim of title that he should fully set up his complete good faith in his

answer.

In Greaves v. Atkinson, 68 Miss. 598, 10 South, 73, there appeared a bill to enforce a resulting trust against the purchaser at a bankrupt sale, and it was held that if the bill had shown, as in the case before us, all the facts, and they showed on their face that defendant was a purchaser for value, demurrer might be interposed. In Atkinson v. Greaves, 70 Miss. 42, 11 South. 688, it is held that payment of consideration is prima facie evidence of want of notice; and in the case at bar it must be taken from the allegations of the bill itself that Gardner and Nabors paid their bid at the execution sale, and that they sold to Blumenberg, who bought in good faith. If they became the purchasers at the sale and received a deed from the sheriff, and if it was sold to them for $21, all as charged in the bill, it must be assumed as against the pleading, that they paid their bid, especially as the only objection of the bill is that the price was so grossly inadequate as to necessarily put any purchaser on notice of defects in the title.

We cannot subscribe to the doctrine advanced that, in an attack like this on the title of a remote vendee, the inadequacy of the bid at execution sale can be invoked to destroy his title on the ground that this, per se, put him on notice. There is no charge of any fraud, conspiracy, or collusion between the judgment creditor and Gardner and Nabors or Blumenberg. There was no motion in the circuit court to vacate the sale, as in Baldwin v. McGee (Miss.) 14 South. 451, and in the case of Busick v. Watson, 72 Miss. 244, 16 South. 420. The posture of the parties cannot be changed in this proceeding simply because of that.

A purchaser or creditor on examining the title would have found it perfect on the records in Mrs. Nelson, and was not bound to take notice of a trust deed executed by any other person. Her deed to Fredericks was not of record. It hung out in the air

like Mahomet's coffin, and did not touch the records anywhere, so far as Mrs. Nelson's name appears in the line of title. The trust deed of Fredericks is merely to secure a debt, and on its face presents no connection with her antecedent perfect title. Baker v. Griffin, 50 Miss. 163, and authorities there cited; Sessions v. Reynolds, 7 Smedes & M. 153; Hiller v. Jones, 66 Miss. 636, 6 South. 465. The case of Stovall v. Judah, 74 Miss. 747, 21 South. 614, cannot affect the settled doctrine because of a currente calamo clause of the opinion, on page 754, that the trust was of record, "which they have seen, and ought to have seen," etc., since the opinion is based on the fact that it was seen, and on the further fact that the purchaser under it took actual possession.

On the main question in the case M. V. Co. v. Chicago, etc., R. R. Co., 58 Miss. 846 is conclusive. There Chief Justice Chalmers comments on and explains Kelly v. Mills, 41 Miss. 267, and Walton v. Hargroves, 42 Miss. 20, 97 Am. Dec. 429, and, under the authorities he cites, sustains the title of an execution sale purchaser in a case like that before us. See Sledge v. Obenchain, 58 Miss. 675; Loughridge v. Bowland, 52 Miss. 558. Appellant must stand or fall by the recorded trust deed of Fredericks to F. C. Nelson, trustee, to secure Mrs. Nelson in the payment of a plain debt as it appears on its face, and, it being disconnected from the claim of title to her, cannot succeed in this litigation because of the registry laws. It is unfortunate for Mr. Hart that he did not see to it that Mrs. Nelson's conveyance to Fredericks was filed for record. 28 Am. & E. Enc. Law, 179, note 2, under the heading "Mortgage by Vendee"; 2 Warvelle on Vendors, 714, note 2, and page 712. That conveyance is not produced, and it must be assumed against the pleading, even if this was material, that it was a straight deed, reserving no lien and expressing the consideration paid. Affirmed.

MISSISSIPPI COTTON OIL CO. v. SMITH. (Supreme Court of Mississippi. Dec. 1, 1902.)

SALES STATUTE OF FRAUDS-DELIVERY-ACTION FOR VALUE-ADDITIONAL CONTRACTENFORCEMENT--MULTIPLICITY OF SUITS.

1. A finding of the chancellor based on the evidence will not be disturbed on appeal.

2. A contract for the sale of cotton seed which was delivered by the seller is not within the statute of frauds.

3. In an action for the value of cotton seed delivered to one defendant, claimed to be the agent of the other, the fact that the agent mixed the seed with other seed purchased from others was immaterial.

4. Where the manager of defendant corporation agreed to pay plaintiff 50 cents a ton for all cotton seed he would deliver to the corporation's agent in the place where plaintiff lived,

174.

2. See Frauds, Statute of, vol. 23, Cent. Dig. }

in addition to the price of the seed agreed on between plaintiff and the agent, if the plaintiff would not sell seed to the corporation's competitors, the court, in a suit in equity for the value of seed delivered to the agent, and converted by him and the corporation, had power to render judgment for such additional amount agreed on, to prevent a multiplicity of suits.

Appeal from chancery court, Madison county; H. C. Conn, Chancellor.

Action by Carroll Smith against the Mississippi Cotton Oil Company and another. From a judgment in favor of plaintiff, defendant company appeals. Affirmed.

The Mississippi Cotton Oil Company is domiciled and doing business in Jackson, Miss., and owns a large warehouse, scales, and an office at Canton, Miss., and for several years had employed G. C. Shackleford as its agent at Canton to purchase and ship cotton seed to it. This was a bill filed by Carroll Smith against the Mississippi Cotton Oil Company and Shackleford for the purpose of collecting the value of a large quantity of cotton seed which was alleged to have been fraudulently converted by the cotton oil company and Shackleford to the payment of a debt due by Shackleford to the said company. The bill also embodied a claim for $350; this being for 50 cents per ton on the seed sold by Smith to Shackleford under a contract alleged to have been made with the manager of the said oil company. The facts, as developed by the testimony, were as follows, in substance: For several years G. C. Shackleford, prior to August 31, 1901, was the agent of the Mississippi Cotton Oil Company at Canton, in the purchase and shipment of cotton seed, and was by it furnished with its warehouse, scales, and office at Canton. On the 31st of August, 1901, a new arrangement was made, and the company turned over its office, warehouse, and scales to Shackleford, and furnished him money to buy seed so long as he shipped the seed he bought to the said company; they to have the refusal of buying at the same price Shackleford could get elsewhere. Failing to do this, he was to surrender the house, scales, etc. At the commencement of the cotton season, under this arrangement, Shackleford was indebted to the said company in the sum of $1,100 on account of their previous dealings. Shackleford inserted an advertisement in a newspaper giving notice of the altered relations, and mailed some postal cards giving such notice. Smith testified that he never received any of these notices, and that, after such new arrangement, Shackleford occupied the same office, used the same scales and furniture, and stored the seed in the same warehouse, and, if any change was made, it was not apparent to the public, and that Shackleford would state to him reports from appellant's manager at Jackson (Mr. Todd) as to what seed were worth. Mr. Smith owned a public gin, and acquired large quantities of cotton Beed. Competition between cotton seed buy

ers in the purchase of seed was quite strong, and Mr. Todd, appellant's manager at Jackson, went to Canton and had a conversation with appellee, Smith, in November; and Smith sets this conversation out in his testimony as follows: "Now, Smith," said Todd, "what do you want to sell your seed to Robinson and Howard, and little fellows like that? Sell them to me, and I will pay you 50 cents per ton above the market price for every ton you ship me through Geo. Shackleford. Get all you can out of Shackleford, and at the close of the season bring your account down to me, made out on the basis of 50 cents advance above what you have obtained from Shackleford, and I will pay it." Todd's version of this conversation is as follows: "He said to me that this wrangling was very unpleasant, and ‘I would much prefer selling your representative seed, but others are rebating.' I told him we wanted our buyer to meet competition, and, if others offered more than our buyer, all he had to do was to let me know what other parties were offering, and I would meet. It was not necessary to say anything to Shackleford about it. He said he would do that, but we closed no transaction." After this conversation, Smith sold all his seed to Shackleford. The course of dealing between Smith and Shackleford was as follows: Smith would have the seed hauled to the warehouse, and they would be placed in the warehouse in a common mass, with other cotton seed purchased by Shackleford from other parties. If a price was agreed upon, the seed became Shackleford's, but if they did not agree on the price, and Smith sold to other parties, Shackleford was to return in kind according to receipts held by Smith. Under this arrangement, Smith on December 26, 1901, had a large quantity of seed in the warehouse, which he afterwards sold at $17 per ton to Shackleford. On January 2, 1902, Smith demanded a settlement of Shackleford, and his agent went with Shackleford to Canton Exchange Bank, and made a draft for the amount due on the Mississippi Cotton Oil Company, in favor of the said bank, which the bank took, and a deposit ticket Iwas made out for the amount of the draft, and the amount placed to the credit of Smith at the bank. Shackleford paid the exchange on the draft. Shackleford on the same day notified the cotton oil company of the draft, but received no reply to it. The draft was sent to a bank in Jackson for collection, and was received January 3d, and the Mississippi Cotton Oil Company was notified the same day of its receipt for collection. The manager was out of town, and the Exchange Bank waived protest, and instructed this bank to hold the draft until the manager returned; and on January 9th the manager returned, and refused to pay the draft, and It was protested. While the draft was being held at Jackson, the manager of the Mississippi Oil Company went to Canton and

took a transfer to the Mississippi Oil Company from Shackleford, on account of his indebtedness to the company, of all his property; claiming that the oil company had purchased the cotton seed from Shackleford, and crediting Shackleford with their value. When the draft was protested the Canton Exchange Bank charged it back to Smith's account. Smith sued the bank on the draft, and that suit is now pending. From a decree for complainant for the value of the cotton seed, and for the 50 cents per ton claimed against the Mississippi Cotton Oil Company, it appeals.

Smith, Hirsch & Landau and W. H. Powell, for appellant, cited National Bank v. Burkhardt, 100 U. S. 689, 25 L. Ed. 766; Odie v. National City Bank of New York, 45 N. Y. 735, 6 Am. Rep. 160; Metropolitan National Bank v. Loyd, 90 N. Y. 532; Ditch v. Western National Bank (Md.) 47 Am. St. Rep. 389 (s. c. 29 Atl. 72, 138, 23 L. R. A. 164).

J. B. Chrisman and Mayes & Harris, for appellee.

CALHOON, J. The chancellor manifestly believed from the evidence either that, as to Smith, Shackleford was the agent and representative of the oil company, and therefore was the oil company, or that this company and Shackleford confederated to defraud Smith, or he believed both of these things. We cannot disturb his finding, and therefore the authorities cited in one of the briefs for appellant do not apply.

The statute of frauds cuts no figure, because the seed were delivered on their purchase, and the mixing of seed cuts no figure, because the purchaser mixed them, and the decree for the extra 50 cents per ton was right against the cotton oil company, and within the jurisdiction, to prevent a multiplicity of suits; and therefore the authorities cited in the other brief of counsel for appellant do not apply. Affirmed.

(81 Miss. 606)

TYER v. LILLY et al. (Supreme Court of Mississippi. Dec. 15, 1902.) DEEDS GRANTEES-CONSTRUCTION.

1. A deed named B. "and children" as parties of the second part, and recited that the grantor granted to the "party" of the second part, "his" heirs and assigns, certain premises, "to have and to hold unto the party of the second part, theirs heirs and assigns." At the time of the conveyance, B. had one child. The deed had been prepared by filling in the blank spaces in a printed form, and bore evidence of haste and carelessness. Held, that B. did not take the entire title, but took in common with his child.

Appeal from chancery court, Pontotoc county; H. L. Muldron, Chancellor.

Suit by Mrs. Beulah Tyer against R. G. Lilly and another. From a decree for defendants, complainant appeals. Reversed.

Mitchel & Fletcher, for appellant.

If the deed really conveys the land to C. J. Bolen and children, its effect is to render C. J. Bolen and complainant tenants in common of the 40 acres in controversy,-as much so as if it had been to C. J. Bolen and Beulah Bolen by name; it being admitted that complainant was the only child in esse when the deed was made. Brabham v. Day, 75 Miss. 923, 23 South. 578. We cheerfully concede the well-established rule of law in this state, that, where there is an irreconcilable conflict between the granting clause and the other parts of the deed, the granting clause will prevail, where its meaning is clear and unambiguous. We do not question the authority of Robinson v. Payne, 58 Miss. 690, nor of Dunbar v. Aldrich, 79 Miss. 698, 31 South. 341. Indeed, we invoke the authority of these cases, as lending support to our contention, for in both these cases the court is at pains to say that the clauses must be clearly irreconcilable, and the meaning of the granting clause must be clear and unambiguous. In the Robinson Case the granting clause clearly created an estate in fee simple, and the habendum clearly created a life estate. The clauses could not be reconciled, and the granting clause, being of superior dignity, prevailed. But the court says "that it gives way, as all rules of construction must, where there is one clear and unmistakably expressed intention." So in the Dunbar Case the conflict between the granting clause and the recitals is sharp and clearly defined. Where the deed conveyed land to Ida V. Lee and children forever, and for her own benefit and behoof, it was held that Ida Lee and children took the land as tenants in common. Moore v. Lee (Ala.) 17 South. 15. If certainty appears in a deed, that part which is certain must be referred to, to explain what is indefinite, and in this connection the recitals in the premises of a deed are important to explain the motives and reasons upon which the deed is founded. Williams v. Claiborne, 7 Smedes & M. 488. All parts of the deed should be construed together, so as to harmonize the parts, and derive from the whole instrument the intention of the grantor. Goosey v. Goosey, 48 Miss. 210. See, especially, the well-considered case of Hart v. Gardner, 74 Miss. 153, 20 South. 877, and authorities cited. For construction of a deed somewhat similar to this, see King v. Stokes, 125 N. C. 514, 34 S. E. 641. The word "parties," in the granting clause, with the additional designation contained in the premises. Schulz v. Brohl, 116 Mich. G03, 74 N. W. 1012. Where the granting clause entirely omits the name of the grantee, it may be supplied by reference to other parts of the deed. Bay v. Posner (Md.) 26 Atl. 1084. All parts of a deed must be given effect, if possible, and all parts are to be construed together. Lowdermilk v. Bostick, 98 N. C. 299, 3 S. E. 844; Jones v. Pashby, 62 Mich. 614, 29 N. W. 374; Grueber v.

Lindenmeier, 42 Minn. 99, 43 N. W. 964; Robinson v. Missisquoi R. Co., 59 Vt. 426, 10 Atl. 522; Richter v. Richter, 111 Ind. 456, 12 N. E. 698; Lehndorf v. Cope, 122 Ill. 317, 13 N. E. 505; Case v. Dexter, 106 N. Y. 553, 13 N. E. 449; Smith v. Packhurst, Atk. 136; Zimmer v. Miller, 64 Md. 296, 1 Atl. 858; Henderson v. Mack, 82 Ky. 379; Same v. Sawyer, 99 Ga. 234, 25 S. E. 312; Cornell v. Green (C. C.) 88 Fed. 821; Adams v. Higgins, 23 Fla. 13, 1 South. 321; Lemon v. Graham, 131 Pa. 447, 19 Atl. 48, 6 L. R. A. 663. It is clear that Brantley Bolen intended to give complainant an interest in the lands.

Anderson & Long, for appellees.

Where there is a discrepancy or repugnancy between either the recitals in the preamble of a deed, or the habendum clause, or both, on the one hand, and the granting clause, on the other, the latter will control. Robinson v. Payne, 58 Miss. 690; Miller v. Tunica County, 67 Miss. 651, 7 South. 429; Dunbar v. Aldrich, 79 Miss. 698, 31 South. 341. We contend that, taking the deed as a whole, it clearly appears "children" is used as a term of limitation, and not of purchase. The most reasonable and only consistent construction is that "children" is used as synonymous with "heirs." The term "their heirs," used in the habendum, could refer, without doing very great violence to the language, to the heirs of C. J. Bolen. We concede that the term "children" is a word of purchase, ordinarily used, but where it is necessary to give effect to the instrument, or where there are other words showing that "children" was used in the sense of "heirs," the term will be

construed as a word of limitation, equivalent to "heirs," etc. Vol. 5, Am. & Eng. Ency. of Law (2d Ed.) 1093; Jordan v. Roach, 32 Miss. 482. If the deed was of doubtful meaning, parol testimony was admissible to show such relation of the parties to each other, and the subject-matter and the surrounding circumstances, as adds to the interpretation of the language employed, so as to ascertain the intent; and, where the language used is susceptible of different meanings, it is competent to inquire what the parties understood it to mean. See digest of authorities in Brame & Alexander's Digest, p. 502, section 104; Schlottman v. Hoffman, 73 Miss. 188, 18 South. 893, 55 Am. St. Rep. 527; Tufts v. Greenewald, 66 Miss. 360, 6 South. 156. If we are right in this contention, it seems to us the intention of the grantor is clear.

Fontain & Fontain, for appellees.

Appellant has no interest in the land. The deed from B. Bolen, under which she claims title, filed as an exhibit with her bill, conveys the fee-simple title to said land to C. J. Bolen, her father. Dunbar v. Aldrich, 79 Miss. 698, 31 South. 341. While it is true there is a discrepancy between the recitals in the

preamble and the granting clause and between the habendum and the granting clause in the deed, the granting clause in the deed is both clear and unambiguous, and prevails. Miller v. Tunica County, 67 Miss. 651, 7 South. 429; Robinson v. Payne, 58 Miss. 690. It is a settled rule of construction that the meaning or intention of the grantor is not the object sought, but what is the meaning of the words used in making the grant, and especially is it a rule of interpretation of a deed that an intention manifested in the recitals of a conveyance will be controlled by the terms of the granting clause of the deed; and, when the words in the granting part are clear and unambiguous, they cannot be controlled by the recitals or other parts of the deed. Dunbar v. Aldrich, supra. There is no ambiguity in the granting clause in the deed. It conveys to the party of the second part, and to his heirs and assigns, the land in fee simple.

CALHOON, J. The whole contention for appellees is based on the force and effect of the solitary word "his" in a deed. This instrument, with the words of it pertinent to the question italicized by us, is as follows: "Brantley Bolen to C. J. Bolen and Children. This indenture made on the 3rd day of February, A. D. one thousand eight hundred and eighty two and between Brantley Bolen of Pontotoc county, party of the first part and C. J. Bolen and Children parties of the second part witnesseth: That the said party of the first part in consideration of the sum of Five hundred dollars to him paid by the said party of the second part, the receipt of which is hereby acknowledged do by these presents, grant bargain, and sell, convey and convey and confirm unto the party of the second part, his heirs and assigns, the following described lots, tracts or parcels of land, lying and being situated in the county of Pontotoc, State of Mississippi, known as described as follows: West half of the North East quarter of section five, Township nine, Range four E. to have and to hold the premises aforesaid with all the rights title privileges appurtenances and immunities thereof belonging, or in any wise appertaining both at law and equity, unto the said party of the second part and unto theirs heirs, executors and administrators and the said party of the first part for his heirs, executors and administrators do hereby covenant and agree with the said party of the second part, theirs heirs and assigns and the said party of the first part will warrant and defend the title to the said premises unto the said party of the second part and unto theirs heirs and assigns forever, against the lawful claims and demands of all persons whomsoever except on account of taxes after the 1st of January 1882. In witness whereof the said party of the first part hath hereunto set his hand and seal the day

and year first above written. [Signed] B. Bolen." When this deed was executed the grantee, C. J. Bolen, was the father of one child, Beulah, the appellant here, who was a minor then, and still is a minor, and now the wife of R. L. Tyer. More than 11 years after its execution, and on December 23, 1893, C. J. Bolen alone conveyed the land in controversy, with general warranty, to R. G. Lilly & Son, the appellees. In 1901 Mrs. Tyer, by her husband, as next friend, filed her bill in equity against appellees, claiming an undivided one-half interest in the land as tenant in common under the deed to "C. J. Bolen and children," and praying for an accounting for rents and profits, and for partition. To this bill appellees demurred on the ground that the bill showed on its face that C. J. Bolen took the entire title to the land under the deed to "C. J. Bolen and children." This demurrer was overruled, and answer filed, and testimony taken to throw light on the intent and purpose of Brantley Bolen, the grantor, on which the court below dismissed Mrs. Tyer's bill "on bill, answer, exhibits, and proofs," and Mrs. Tyer appeals.

The briefs of counsel are quite able, and say all that may be said on either side, and have greatly aided the court in its investigation of the question involved in this litigation.

The intent of the grantor is to be ascertained from an examination of the entire instrument. This document was manifestly prepared by merely filling in the blank spaces in a printed form of a deed. The filling in is characterized by the appearance of haste and carelessness and inattention. It makes the grantor say that "he," not "I," "do grant," etc., and "do agree," etc.; and the words "theirs heirs" are three times used in the writing. The question is, must the possessive pronoun, "his," be compulsorily referred to C. J. Bolen, or should it properly be referred, according to the actual intent. gathered from the whole paper, to the "parties of the second part," as a class. It is not shown on the face of it whether the grantees are male or female,-whether it is to father or mother and son or daughter. If Beulah, the daughter, had been a son, and C. J. Bolen the mother, would "his" be wholly referred to the son? If both grantees were males, to which one would "his" be referred? If both were females, would "his" render the whole conveyance nugatory? These questions would all be promptly answered in the negative, and they illustrate the importance of a common-sense view of the whole instrument, to see what the purpose was. In its collocation with the immediate context, the word "his," if it is referred alone to C. J. Bolen, seems absolutely nonsensical and preposterous. The "indenture" is recited to be "between Brantley Bolen, party of the first part, and C. J. Bolen and children parties of the second part." It

then recites, "in consideration of $500 paid the said party of the second part," and then proceeds to say that the grantor "do grant," etc., "to the party of the second part his heirs and assigns." But if we look for light on the meaning to the habendum and the covenanting clauses, it becomes manifest that the word "his" referred to both the grantees. The habendum is "unto the said party of the second part, and unto theirs heirs and assigns," that the grantor will warrant, etc., "unto the said party of the second part and unto theirs heirs," etc. Upon the whole instrument it is plain that "his" is absurd, foolish, and unmeaning, unless applied to the party of the second part; and we, without hesitation, so apply it. This view harmonizes the whole instrument, and takes it out from under the operation of the wholesome rule that, where the granting clause is plain, it goverus, though the habendum clause be in conflict. Here the granting clause becomes clear only by a survey of the whole instrument.

We are content with the authorities cited in the briefs of counsel for support of this opinion.

Reversed and remanded for accounting.

1. A writ of assistance to obtain possession of premises mortgaged, sued out by the mortgagee as the purchaser thereof at foreclosure sale, is a proceeding had on the final decree of foreclosure in the cause, and is subject to the statutory provision (Rev. St. § 1448) that "no process shall be issued or other proceeding had on any final decree or order until the same shall be signed and recorded" upon the minutes of the court.

(Syllabus by the Court.)

Appeal from circuit court, Orange county; John D. Broome, Judge.

Bill by the Equitable Building & Loan Association against J. W. Wilmott and Sophia E. Wilmott. Decree for complainant, and defendants appeal. Reversed.

Jones & Jones and Massey & Baumgarten, for appellants. L. G. Starbuck, for appellee.

PER CURIAM. This cause was referred by the court to its late commissioners for investigation, who reported that the decree appealed from should be reversed for the reasons stated in this opinion, which was prepared by them.

This is an appeal from an order of the circuit court of Orange county granting a writ of assistance to appellee, in pursuance of a previous foreclosure sale to it of certain mortgaged premises in possession of the