Trice v. Walker

• Decision Date: 23 April 1894
• Citation: 71 Miss. 968,15 So. 787
• Parties: J. M. TRICE v. W. B. WALKER, ADM'R
• Court: Mississippi Supreme Court

15 So. 787

71 Miss. 968

J. M. TRICE v. W. B. WALKER, ADM'R

Supreme Court of Mississippi

April 23, 1894

FROM the circuit court of Monroe county, HON. NEWNAN CAYCE, Judge.

W. B Walker, administrator of H. B. Gillespie, having recovered a judgment against C. S. Bates, in November, 1890, and caused an execution to be levied on five mules and certain agricultural products as the property of the defendant thereupon the appellant, J. M. Trice, interposed a claim, and gave bond for the property. His affidavit alleges that the property "is not the property of Bates, but is the property of affiant." The issue thus tendered was accepted by the plaintiff, who averted that the property was the property of Bated and liable to the execution, and the issue thus made proceeded to trial. The plaintiff proved that the property, when levied upon, was in the possession of Bates, who was claiming it as his own. Claimant, as a witness in his own behalf, testified that he had authorized Bates to rent for him, for the year 1890, a certain farm, known as the French place; that Bates rented the place from French, and a misunderstanding arose between them, and, to prevent the removal of Bates from the place, Trice subrented the place from Bates, and then rented to Bates a certain part of the land; that, soon after this arrangement was made, Mrs French, the owner of the land, instituted an action of unlawful detainer against Bates to recover possession of the land, which action was defended for Bates by Trice, and resulted finally in judgment in favor of Bates; that Trice during the year 1890, furnished Bates and his hands supplies amounting, together with the sum due for rent, to $ 1,600; that two of the mules levied on had been sold by Trice to Bates on a credit, and that he had failed to pay for them, and that Trice had consented to take them back at an agreed price, and that they were accordingly surrendered to him, and that, during the year 1890, these mules had been merely rented to Bates. The claimant also introduced a trust-deed in his favor, executed in 1886 by Bates, covering the two mules above mentioned.

There was testimony in behalf of the plaintiff to show declarations on the part of Trice that none of the property belonged to Bates; that it all belonged to him, Trice, and that Bates was merely hired for wages.

After the claimant had introduced all his testimony, he asked leave to amend his affidavit, so as to show that he claimed a lien for rent and supplies on the agricultural products which had been levied upon. The objection by plaintiff to this was overruled, and the affidavit amended accordingly. Thereupon plaintiff had Trice, the claimant, recalled for further cross-examination, and he was questioned at length in reference to his conflicting affidavits, the former having claimed all the property as owner and the latter merely under a lien. He was also further questioned in reference to statements which he had made in reference to the character of the claim which he had asserted to the property, and testimony was then adduced by plaintiff to contradict him in reference to such statements.

The testimony having closed, plaintiff asked for a peremptory instruction in his favor as to all of the agricultural products, and as to the two mules embraced in the deed of trust. This instruction the court refused to give. Among others given for the plaintiff, were the following: "6. The court charges the jury that if Trice only had a claim on the two mules, Alice and Hattie, by reason of an unsatisfied deed of trust on them, and did not own the mules, then the jury will find for the plaintiff as to said mules, Alice and Hattie, and assess their value at what the testimony shows them to be worth."

"7. The court charges the jury that although they believe from the testimony in the case that Bates turned the mules, Alice and Hattie, over to Trice, yet if Trice paid Bates nothing for them in any manner, nor gave him any credit for them, such transfer cannot avail against the creditors of Bates, and the jury will find for the plaintiff, and assess the value of the mules at what they are shown by the testimony to be worth."

Verdict and judgment for plaintiff, and claimant appeals.

Reversed and remanded.

E. O. Sykes and Clifton & Eckford, for appellant.

The first affidavit was only technically untrue. Trice's paramount lien was sufficient ground to absorb the entire crop, and he was virtually the owner. The affidavit and the statements by Trice, if made to the effect that he was the owner, should not have been allowed to prejudice his case.

Mere failure to enter credit for the agreed price of the mules returned by Bates to Trice amounts to nothing.

The verdict is manifestly contrary to the evidence. O'Leary v. Burns, 53 Miss. 171.

Even if the mules were still the property of Bates, there was an unsatisfied deed of trust on them for more than they were worth. The plaintiff had the right to sell Bates' interest in them; but the measure of his recovery against the claimant would be the value of the mules in excess of the debt secured by the trust-deed. The verdict should not have been for more than the value of the equity of redemption. Butler v. Lee, 54 Miss. 476; Helm v. Gray, 59 Ib., 54.

The same rule, it would seem, would apply to the agricultural products on which Trice had a landlord's lien. Herron v. Bondurant 45 Miss. 683; McCarroll v. Alexander, 48 Ib., 128.

The verdict rendered could not have been obtained but for the disingenuous attack made on the claimant's credibility. The wrong done is clearly discernible, and has met with proper condemnation by this court. See Mitchell v. McDavitt, 70 Miss. 608.

Section 4425, code 1892, enlarged § 1744, code 1880, so that now the equities of parties call be determined and adjusted on a claimant's issue.

The instructions increased the confusion into which the case had come. In one breath they announce that the issue was one of title, and in another that, as to the agricultural products, the question of lien was involved.

W. B. Walker, E. H. Bristow and Calhoon & Green, for appellee,

Filed separate briefs, discussing the same assignments of error and, as to the matter decided, making the following points: The claimant should not have been allowed to file the amended affidavit. He does not claim to have been surprised by the proof. There was an unreasonable application of the statute as to amendme...