Cox v. Martin

• Decision Date: 08 February 1897
• Citation: 75 Miss. 229,21 So. 611
• Court: Mississippi Supreme Court
• Parties: W. P. COX v. W. F. MARTIN, ADMINISTRATOR, ETC

21 So. 611

75 Miss. 229

W. P. COX v. W. F. MARTIN, ADMINISTRATOR, ETC

Supreme Court of Mississippi

February 8, 1897

March 1897

FROM the circuit court of Grenada county HON. C. H. CAMPBELL Judge.

Jonathan Payne, a farmer, executed a deed of trust early in the year 1895 to W. P. Cox, trustee, for the benefit of Mrs. E. A Cox, conveying some personal property, specifically described, and the crops to be grown in said year on his farm, to secure a debt of $ 48.50 already owing, but not due and $ 250 to be advanced in supplies by Mrs. Cox. The debts were to mature November 1, 1895. Jonathan Payne died June 23, 1895, before the maturity of the crops, having obtained $ 88.44 worth of supplies. Shortly afterwards J. B. Jones, sheriff of the county, by virtue of his office, was granted letters of administration on the estate of the deceased, Payne, and obtained an order of court authorizing him to cultivate, complete, and gather the crops on the farm of the decedent, and to sell the same. Jones, as administrator, obtained further supplies under the deed of trust from Mrs. Cox.

In October, 1895, W. P. Cox, the trustee, took possession of some cotton raised on the farm, under the terms of the deed authorizing him so to do, even before the maturity of the debt, in case the property was about to be removed, and that the administrator was about to remove it was conceded. In November following he took possession of the personal property specifically described, and some more of the cotton so raised.

The administrator, Jones, brought two actions of replevin against Cox, a separate one being instituted shortly after each seizure by him. All the property was restored to the trustee and defendant in each case, upon the execution by him of a proper forthcoming bond. The two suits were afterwards consolidated. Before the trial of the consolidated suit, the term of office of Jones, as sheriff, expired, and he was succeeded by appellee, Martin; and the order of the chancery court, showing that Martin had been appointed administrator of the estate of Payne, did not in terms discharge Jones as administrator, and because thereof, when it was proposed in this case to revive the cause in Martin's name, the defendant, Cox, objected thereto, but the court allowed the revivor.

On the trial the court below, objection being interposed, would not allow proof to be made by the defendant, of supplies furnished to the administrator by Mrs. Cox, beneficiary in the deed of trust, after the death of Payne, but did permit evidence showing what expenses were incurred in gathering and preparing for market so much of the crop as was necessary to protect the debts against Payne owing at the time of his death. It was shown on the trial that the deceased, Payne, was a householder and citizen of the state; that his adult son, who was able-bodied and capable of supporting and maintaining himself, lived with the father at the time of, and just preceding, his death, and, upon this proof, it was claimed that: the administrator had no title to that portion of the property which was exempt from execution by law. The verdict of the jury was in these words: "We, the jury, find the amount as below due plaintiff as administrator of Payne: Ten bales of cotton, at $ 37.50 per bale; 250 bushels of corn, at twenty-five cents per bushel; and 240 bushels of cotton seed, at six cents per bushel, and find, after taking off one bale of cotton, $ 37.50, and nine head of cattle, $ 48.00, balance due Mrs. E. A. Cox, $ 113.85."

Upon this verdict the court below adjudged that defendant retain $ 113.85 out of the proceeds of the first cotton seized by him; that he pay balance thereof to plaintiff, and that he pay plaintiff the value of the other property, or restore the same to his possession. The defendant appealed.

Judgment is reversed and the cause remanded.

Robertson Horton, for the appellant.

Our contention is, that the appellant, who is the trustee in the deed of trust, was entitled to hold all of the property embraced in and conveyed by it, or he was entitled to none. It is so "nominated in the bond;" on that instrument we stand or fall. Jonathan Payne executed said instrument, evidencing full faith and trust in appellant to dispose of said property and pay to him the surplus, if any there should be. It is true, that on October 30, when the first writ of replevin was issued, the debt was not due, but the property was about to be removed by the administrator.

The case of Bates v. Snyder, 59 Miss. 497, does not militate against our position, for that decision was on § 2622, code of 1880 [§ 3726, code of 1892], where the judgment is for plaintiff in toto. Under § 3727 "if the verdict be for defendant, he having given bond, the judgment shall be that he retain it, the property, and that he recover the damages sustained by the wrongful suing out of the writ." The judgment should have been rendered under either § 3726, that the plaintiff should recover all or none of the property, or under § 3727, that the defendant retain all of the property, for the verdict manifested a debt due from Jonathan Payne, the grantor in the trust deed, to Mrs. E. A. Cox, the beneficiary, and hence was for defendant. Both sections cannot be invoked. The court trying a replevin suit will not take upon itself to administer on an estate, and make distribution of it, as would a court of probate or chancery. It is often the case that a defendant can avail himself of rights which are denied a plaintiff. Ashy v. Carr, 40 Miss. 64; Hunt & Vaughan v. Shackelford, 55 Ib., 94; Pollard v. Thomas, 61 Miss. 150.

The appellee should not have been permitted to prosecute this suit. Jones, the then sheriff of Grenada county, administered on the estate of Jonathan Payne, deceased, and had not been discharged as such administrator at the time Martin was permitted to enter the list and take a tilt. If Martin was authorized to prosecute this suit, then he could have instituted one against Jones, administrator of said estate, for whatever of effects of said estate he might have in his hands, and not wait for the chancery court to order distribution or direct the course they should take, There could not be two administrators thus appointed at different times. Jones should be wholly out before Martin could be partly in.

Jones instituted these suits, and, although administrator, he would have been liable individually for costs if the cases had gone against him, unless the court awarding costs should have certified that "there were probable grounds for instituting, etc., the suit on which judgment shall have been given against him, " etc. See § 880 and 881, code of 1892. Surely there could be no equity, law or reason for rendering judgment for cost incurred by Jones or on his behalf, against Martin, and yet that would have been the case if it be law to let Martin prosecute this suit and the case had gone against him and the trial judge had refused to give the saving certificate, or else no one would have been liable, as Jones was permitted to retire. The property was not in custody of the law. McWillie v. Van Vacter, 35 Miss. 454; Ashy v. Carr, 40 Miss. 67, 73; Burleson v. Milan, 56 Miss. 399; Howard v. Proskauer, 57 Miss. 248-250. Jones sued in his individual capacity. The words "administrator of Jonathan Payne, deceased, " employed in the declarations, are only descriptio personae. Robertson v. Banks, 1 Smed. & M., 666-671; Richardson v. McLemore, 60 Miss. 319.

The defendant was not permitted to show how much Mrs. E. A. Cox had expended in paying hands for gathering the whole crop of cotton, for ginning, wrapping, and preparing it for sale, even under the order of Jones, administrator. If Payne had in his lifetime given such an order, would not the cotton, corn, etc., have been bound under the trust deed? It would; and why should Jones not be in like manner limited in his powers?

Jonathan Payne was a householder, and M. C. Payne, his son, lived with him. He was, it is true, twenty-five years of age, able-bodied and able to support and maintain himself. We claim that Jonathan Payne was shown to be the ''head of a family, " and the instructions as to exemptions was improperly withdrawn from the consideration of the jury. Powers v. Sample, 72 Miss. 187, 190. The head of a family claiming homestead need not be a married man to avail himself of the benefit. A widow with dependent minor children may claim and become entitled to the homestead during her widowhood, though the children have outlived their minority meanwhile. 9 Am. & Eng. Enc. L., 450; 69 Ga., 60.

W. C.McLean, for appellee.

The appellant, upon the very threshold of his appeal, is met with the proposition that he recovered more in the lower court than he was entitled to, and hence he has no cause to be aggrieved at the ruling of the circuit court or at the verdict of the jury. The unquestioned fact is that Jones, the administrator, took possession of his intestate's crop and cultivated and gathered it, under the order of the chancery court, by virtue of § 1882 of the code. After Jones had gathered the crop and prepared the same for market, the appellant took possession of the property, by virtue of the trust deed executed by the intestate, and he claims the property solely under that instrument. It is admitted that the intestate was cultivating the crop at the time of his death. Now, we say that the effect of the chancery court's order, authorizing and instructing' the administrator to take charge of the crop then growing and to cultivate the same, was to place the property in custodia legis; that the administrator is amenable to the chancery court alone for the property and its proceeds, and that no person or court possesses the power or authority to take...