Dennis v. Robinson

• Decision Date: 14 April 1913
• Citation: 61 So. 597,104 Miss. 548
• Court: Mississippi Supreme Court
• Parties: JOHN E. DENNIS, TRUSTEE, v. JOHN ROBINSON

61 So. 597

104 Miss. 548

JOHN E. DENNIS, TRUSTEE, v. JOHN ROBINSON

Supreme Court of Mississippi

April 14, 1913

March 1913

APPEAL from the circuit court of Leflore county, HON. P. C. CHAPMAN Special Judge.

Replevin by John E. Dennis, trustee, against John Robinson. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

M. B Grace, for appellant.

The note and deed of trust affirmatively shows the conditions of the deed of trust had been broken, and the plaintiff was entitled to the immediate possession of the property enumerated in the deed of trust. It seems every material fact required by section 4214, Code 1906, was affirmatively shown and proven.

While the record does not show a demand was made upon the defendant for the property before the writ was sued out in this cause yet such a demand was made, and refused. The conditions in the deed of trust had been broken, and the defendant claimed title to the property. The deed of trust showed the title to be in the defendant until after the conditions in the deed of trust had been broken. It was not necessary to prove a demand of the defendant for the property, and his refusal, the record evidence showing the title, that is, the legal title, was in the defendant, and he having executed his replevin bond for the identical property taken under the power of the writ of replevin. Under such conditions, a demand was unnecessary. Dearing v. Ford, 13 Smed. & M. 269; Newell v. Newell, 34 Miss. 385; Morris v. Buck, 62 Miss. 76; Whittington v. Watkins, 1 Miss. Dec., 81; George v. Hewlett, 70 Miss. 1, 12 So. 855, 35 Am. St. Rep. 626.

To maintain the action of replevin, the plaintiff must be entitled to the immediate possession of the property as enumerated in the affidavit and writ. Buck v. Payne, 52 Miss. 27.

Who has the right to maintain this suit? Manifestly it is the trustee named in the deed of trust. The property is transferred to him in trust, and when the conditions of the deed of trust in which he is trustee are broken; when the debt becomes due and is not paid, then it is the duty of the trustee to take charge of the property offered and given as security, advertise it for sale, sell it, pay the expenses of the execution of the trust, pay the debt, interest and attorneys, if any, and pay the remainder, if there be any, to the party who executed the deed of trust, cancel and satisfy the record as to the deed of trust, and, if any suit is to be instituted, if the party who executed the deed of trust refuses to give up the property given as security, it is the duty of the trustee to institute replevin for same, and he must be a party to the suit. This is what the trustee endeavored to do in this case. First National Bank v. Cook Carriage Co., 70 Miss. 587.

Gardner & Whittington, for appellee.

The judgment of the court below was correct. The court could not do otherwise than direct a verdict for the defendant. The plaintiff did not prove jurisdictional facts that would warrant a judgment in his favor. The court will search the record in vain to find a scintilla of testimony giving the court below or the justice court in which this cause originated jurisdiction. The affidavit averred that the property was unlawfully detained in district three of Leflore county, Mississippi. It devolved upon plaintiff to show that the defendant lived in district three, or that at least some of the property involved was found in district three of Leflore county. The plaintiff introduced no testimony whatever as to the location of the property, or as to the residence of the defendant. This is absolutely essential in order to give the court jurisdiction. Turner v. Lily, 56 Miss. 576; sec. 4216, Code of 1906. The court, therefore, properly sustained the motion to exclude on the first ground which was the averments of the affidavit and writ had not been proved. In other words, the plaintiff did not prove the jurisdictional facts necessary, or the jurisdictional facts averred in his affidavit.

As we...