Cocke v. Cross

• Decision Date: 17 December 1892
• Citation: 20 S.W. 913
• Parties: COCKE <I>et al.</I> v. CROSS.
• Court: Arkansas Supreme Court

Page 913

20 S.W. 913

COCKE et al. v. CROSS.

Supreme Court of Arkansas.

December 17, 1892.

Appeal from circuit court, Phillips county; GRANT GREEN, Jr., Judge.

Action by Moses Cross against J. L. Cocke & Co. for conversion of two mules. From a judgment for plaintiff, defendants appeal. Reversed.

Defendants stated in their answer that the only transaction that they or either of them at any time ever had in which the said Cross could in any way be interested was as follows, to wit: That on the 1st day of March, 1887, the said Cross executed and delivered to one M. B. Woodyard his promissory note for $570, with 10 per cent. interest from date, due and payable on the 15th of October, 1887, and that, to secure said note, he executed to one E. T. Nelson, trustee, a trust deed, conveying, among other property, two mules, describing them, with power in the trustee, on default of payment, to take said mules and sell them; that said deed of trust was recorded; that on the 16th of May, 1887, before its maturity, said Woodyard assigned and delivered said note to defendants, who, when same became due, required said trustee to take said property, and sell same to pay off said note; that said plaintiff refused to give up said mules upon demand to the trustee, who thereupon brought suit in the court of common pleas of Phillips county on February 2, 1888, to compel the delivery to him of said mules for the purposes of his said trust; that this plaintiff was the defendant in said action, which progressed to judgment; that by said judgment the possession of the said two mules was delivered to said trustee, and that said judgment now remains in full force and effect; that said trustee disposed of said mules for the purposes of said trust, and defendants became the purchasers thereof, and entered as a payment on plaintiff's note so held by them the value thereof, which was the sum of $125; that they were the same mules the possession whereof was awarded to said trustee by the judgment of said court. (a certified transcript of judgment was filed with answer,) and whose value was ascertained by said judgment to be $125. To which answer plaintiff demurred. The court sustained the demurrer, and afterwards overruled it. The case was submitted to the court, sitting as a jury. It was agreed by the parties to this suit, for the purposes of this trial, as follows: (1) That M. B. Woodyard & Co. gave to defendants three promissory notes, one of which was paid, and the other two were renewed; that subsequently M. B. Woodyard & Co., to secure said notes, transferred to defendants, as collateral, sundry notes taken from their customers, among which was one note given to said Woodyard & Co. by said plaintiff for supplies furnished, payment of which was secured by deed of trust on the mules in controversy. (2) That defendants brought suit in this court against M. B. Woodyard & Co. to recover a judgment upon said two notes, which was the only indebtedness claimed to be owing from said Woodyard & Co. to said defendants, either at the time of transfer of said collateral notes, or at the date of the bringing of their said suit. Woodyard & Co. filed their bill to cancel said notes and alleged indebtedness as usurious, and, upon hearing, the court decreed that the notes be canceled. (3) That the value of the said mules at the time they were taken from possession of said plaintiff was $200, and they were taken by the trustee under proceedings in the common pleas court of this county, and delivered to said defendants, without a sale under the provisions of said deed of trust, and without consent of this plaintiff; that at that date plaintiff was indebted to Woodyard & Co. in the sum of $135, for supplies so furnished under said deed of trust. (4) That said original notes so made to J. L. Cocke & Co. were payable at the office of said J. L. Cocke & Co., Memphis, Tenn., and the notes given in renewal of the two notes not paid were payable at the office of John S. Horner & Son, in Helena, Ark.; that said original notes were at the hearing produced to the court by the attorneys for Woodyard & Co., and, upon the objection of the attorney of J. L. Cocke & Co. to their introduction at that time, they were withdrawn; that the plaintiff does not by anything in this...