Cain v. I. Moyse & Co.

• Decision Date: 22 January 1894
• Citation: 15 So. 115,71 Miss. 653
• Parties: E. A. CAIN v. I. MOYSE & CO
• Court: Mississippi Supreme Court

15 So. 115

71 Miss. 653

E. A. CAIN v. I. MOYSE & CO

Supreme Court of Mississippi

January 22, 1894

FROM the circuit court of Amite county, HON. W. P. CASSEDY, Judge.

Replevin by Moyse & Sons against E. A. Cain for the recovery of certain horses, mules and other personal property. The defendant pleaded the general issue, with notice of damages. On the trial, testimony was offered showing that. the property was owned by plaintiffs, and had been left with the defendant for use during the year 1892, for such use and the rent of certain land the defendant giving plaintiffs his note, which was introduced in evidence. The defendant offered to show that the property in controversy had been sold in January, 1892, under a trust-deed given by Cain to Moyse &amp Sons, at which sale it was agreed between them and defendant Cain, that they should buy in the property at a reduced price, so that a balance of the secured debt would remain due, to the end that Moyse & Sons could sue Barney, Johns &amp Co., who had previously purchased from Cain a part of the property covered by the trust-deed; that the sale was made at a reduced price, under this arrangement and upon the agreement that Moyse & Sons would re-convey the property to defendant on payment of the debt remaining due after crediting the recovery from Barney, Johns & Co.; that, having bought the property at a reduced price, they sued Barney Johns & Co., and obtained judgment against them for the value of the property which they had bought. Plaintiffs objected to this testimony, and the objection was sustained; but, on cross-examination of Julius Moyse, one of the plaintiffs certain facts as to this were brought out as stated in the opinion.

Among other things, the defendant introduced an unrecorded deed, purporting to have been executed and acknowledged by plaintiffs, Moyse & Sons, conveying to him all the property in controversy, dated December 1, 1892. Plaintiffs offered testimony to show that the deed was a forgery, and there was a controversy in the evidence as to this.

The second instruction asked by defendant, and refused, was to the effect that the burden of showing their right to recover the property was on the plaintiffs; that the defendant, having produced a deed of conveyance for the property, it devolved on plaintiffs to show by a preponderance of the evidence not only that the deed was not signed or acknowledged by them, but that they did not deliver the same, and that the burden of proof as to this was on the plaintiffs.

Verdict and judgment for plaintiffs. Motion for new trial overruled. Defendant a...