Andrews v. Partee
Citation | 29 So. 788,79 Miss. 80 |
Decision Date | 22 April 1901 |
Docket Number | [NO NUMBER IN OMISSISSIPPI |
Court | United States State Supreme Court of Mississippi |
Parties | JOHN M. ANDREWS, CLAIMANT, v. HENDERSON PARTEE ET AL |
March 1901
FROM the circuit court of, first district, Panola county. HON PERRIN H. LOWREY, Judge.
Partee and another, appellees, were the plaintiffs in the court below. The appeal to the supreme court was prosecuted by Andrews, appellant, who claimed the property levied upon from a judgment of the circuit court against him on a claimant's issue. The judgment in appellee's favor against the original defendant, Dye, was rendered in a justice of the peace court for $ 47.67 and costs. The costs added to the sum recovered, made the demand of the execution equal $ 69. The claimant's issue originated in the justice of the peace court, where its trial resulted in the claimant's favor. The plaintiffs appealed to the circuit court, which decided the issue in favor of the plaintiffs, subjecting the property, worth more than $ 50, to the judgment. The claimant's right to the property depended upon the validity of a chattel mortgage, in which he was named as trustee, and the facts in respect to it are stated in the opinion of the court.
W. D. Miller, for appellant.
Appellant's property had been seized and levied upon, to the amount of $ 100 in value, for which he presented a claimant's issue. As to him, the amount involved was the value of the property seized and claimed--$ 100--and this determines the amount upon the question of jurisdiction. The claimant's issue is a proceeding wholly independent of the original judgment. Bernheimer v. Martin, 66 Miss. 486.
The attention of the court is particularly directed to the following authorities, which sustain the proposition, that, while the deed of trust may be void as to such property as the debtor is, by stipulation or agreement, permitted to use or consume, it is valid as to the balance of the property embraced in it, and does not violate the whole instrument as a matter of law. Ephram v. Kelleher, 18 L. R. A., 604; Re Kirkbride, 5 Dill (Mo.), 116; Donnell v. Byern, 69 Mo. 468; Bullem v. Barrett, 87 Mo. 186; Re Kahley, 2 Biss., 383; Rochlean v. Boyle, 11 Mont. 451; Garrellson v. Pegg, 63 Ill. 111; Barrett v. Fergus, 51 Ill. 352; Schermerhorn v. Mitchell, 15 Ill. 418; Davenport v. Foulk, 68 Ind. 382; Garland v. Rives, 4 Rand. (Va.), 283; Henderson v. Henton, 26 Gratt., 926; Williams v. Adams, 6 Neb., 219; Cook v. Halsell, 65 Tex. 1 (s.c. 5 L. R. A., 139).
The right to sell or use the property must be expressed, in order to render the mortgage void as matter of law. If the power of sale does not appear on the face of the mortgage, the court cannot declare it void. Britton v. Creswell, 63 Miss. 395; Summers & Brannin v. Roos, 42 Miss. 749; 46 Miss. 341.
Boothe & Boothe and L. F. Rainwater, for appellee.
The amount of appellees' judgment against Dye, and not the value of the property claimed by appellant, determines the question of jurisdiction. The limit provided for an appeal has reference to the debt, demand or damage in litigation, and not the interest on the judgment, or the costs or the per centum added to the judgment. New Orleans, etc., R. R. Co. v. Evans, 49 Miss. 785; Jackson v. Whitfield, 51 Miss. 202; Ward v. Scott, 57 Miss. 827; Davis v. Holberg, 59 Miss. 362; Kiernan v. Germaine, 62 Miss. 75.
In Dreyfus v. Myers, 69 Miss. 286, the court says: "The jurisdiction exercised by the court in trying the claimant's issue is only ancillary, for the purpose of determining what disposition it shall make of the property seized in a controversy in which the court has jurisdiction."
The question as to whether a deed of trust, being fraudulent and void as to a part of the property, is equally fraudulent and void as to all the property embraced in it, is too well settled to admit of argument. It is the settled law of this state, as well as a large majority of the other states, that a mortgage or deed of trust, being shown to be fraudulent, either upon its face or by evidence aliunde, that it is, as to all other creditors, fraudulent and void as to all property. Harmon v. Hoskins, 56 Miss. 142; Joseph v. Levy & Co., 58 Miss. 845; Britton v. Creswell, 63 Miss. 394; Tallman & Co. v. Tuttle Bros., 65 Miss. 492; Bank v. Goodbar, 73 Miss. 566; Bump on Fraudulent Conveyances, 126, 127, and a long list of authorities there cited.
It was the duty of the court to construe the deed of trust, and not leave it to the jury. Bowman v. Roberts, 58 Miss. 126.
The point that this court is without jurisdiction because the amount involved does not exceed $ 50, is not well taken. It would be good as against the defendant in execution, because the judgment was for less than $ 50, exclusive of interest and costs. But here the controversy is with a claimant whose property was seized to satisfy an execution for about $ 69 and the property levied on was of greater value than $ 50. So the claimant has his appeal. It often happens that in cases involving...
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