Dean v. Boyd

• Citation: 38 So. 297,86 Miss. 204
• Court: Mississippi Supreme Court
• Decision Date: 10 April 1905
• Parties: ELIZABETH DEAN ET AL. v. JASON NILES BOYD

38 So. 297

86 Miss. 204

ELIZABETH DEAN ET AL. v. JASON NILES BOYD

Supreme Court of Mississippi

April 10, 1905

FROM the chancery court of Attala county, HON. JAMES L. MCCASKILL Chancellor.

Boyd the appellee, was complainant in the court below; Mrs Elizabeth Dean and her husband, the appellants, were defendants there. From a decree overruling a demurrer to the bill of complaint, and denying a motion to dismiss the sequestration proceedings, the defendants appealed to the supreme court. The complainant in his bill charged that on January 24, 1903, appellee and defendant, Edward W. Dean, the husband of his co-defendant, Elizabeth Dean, entered into a contract by which appellee was to furnish Edward W. Dean money and plantation supplies for carrying on farming operations during the year 1903, and on that date Edward W Dean executed and delivered to complainant, now appellee Boyd, a deed of trust on certain personal property and the crops to be grown that year to secure the payment of the supply account and the sum of $ 235.47 already advanced; that a note was given by Edward W. Dean for $ 1,640, to cover the sum already advanced and the probable sum to be advanced; that at the time of executing the deed of trust Edward W. Dean assured complainant, now appellee, Boyd, that no person had any lien, right, title, or claim to the crops to be grown during said year; that during the year complainant, now appellee, Boyd, furnished money, goods, and plantation supplies, which he charged to Edward W. Dean, amounting to $ 2,823.47, and that Edward W. Dean paid on said account at sundry times $ 2,206.12, leaving a balance due of $ 617.35; that during the year Edward W. Dean raised on the land twenty-nine bales of cotton, largely by the aid and use of the money and supplies so advanced to him by complainant, Boyd; that at the time of entering into the contract with Edward W. Dean, Boyd was not advised of the fact that the legal title to the land cultivated by Edward W. Dean was in his wife, Elizabeth Dean, and did not know it until a large portion of the supplies had been advanced; that after hearing this fact complainant, Boyd, continued to furnish supplies, believing that Edward W. Dean and his wife would in good faith pay for same; that afterwards Mrs. Dean declared it to be her purpose to claim and hold the balance of the cotton then on hand of the crop raised by her husband on the land she owned, because it was produced on her land and she was in no way liable for the payment of the balance due; that more than $ 1,100 of the account was for family plantation supplies furnished for and used on the place with the actual knowledge of Mrs. Elizabeth Dean, she having sent orders to complainant, Boyd, for same; that more than the balance due at the time of the filing of the bill of said $ 1,100 was still unpaid; that both defendants were insolvent, and nothing could be collected from either of them by legal process, and, unless complainant can subject the cotton to the satisfaction of the claim, he will lose it. The account was filed as an exhibit to the bill, and it shows that none of the cotton raised by Edward W. Dean was applied to the payment of the account. The bill also avers that Edward W. Dean had a public road contract, and that some of the supplies advanced to him were used in conducting that business. Complainant asked for a writ of sequestration, filed his bond, with only one surety (which the court allowed to be amended), and obtained the writ of sequestration, and the sheriff took into his custody under it ten bales of cotton, and Mrs. Elizabeth Dean made a proper bend, and it was delivered to her. The prayer was that the cotton which was raised by Edward W. Dean with the aid and use of the money and supplies furnished by complainant, and upon which the deed of trust had been given by said Edward W. Dean, be held liable for the balance of the supply bill.

Decree affirmed and cause remanded.

S. L. Dodd, for appellants.

The chancery court is without jurisdiction in the case as made out by the bill of appellee. It shows plainly that appellants and appellee reside, in Attala county, Mississippi.

The plain letter of the statute which confers the power under which appellee's bill is framed is pointed out in Code 1892, § 489, which is as follows: "The chancery court shall have jurisdiction of attachment suits against any nonresident, absent, or absconding debtor, whether the debt be legal or equitable, who has lands and tenements within this state, or against any such debtor and persons in this state who have in their, hands effects of, or are indebted to, such nonresident, absent, or absconding debtor."

In the construction of this statute--and it is the authority for appellee's action in suing out this writ, or he had none--the supreme court of. Mississippi has spoken plainly and decidedly: "The basis of the jurisdiction of the chancery courts to maintain attachment under art. 60, p. 549, Code 1857, is purely statutory, and depends on the condition of facts stated in the statute--to wit, the absence of the debtor; the presence of effects here belonging to, or a debt due, him; or his owning lands and tenements in this state." Statham v. Insurance Company, 45 Miss 581; Allen v. Montgomery, 48 Miss. 101; Trotter v. White, 10 Smed. & M., 612; Truman v. Gwin, Ib., 60; Scruggs v. Blair, 44 Miss. 406; Freeman v....