Dorsey v. Latham

• Decision Date: 22 February 1943
• Docket Number: 35264.
• Citation: 11 So.2d 897,194 Miss. 253
• Court: Mississippi Supreme Court
• Parties: DORSEY et al. v. LATHAM.

11 So.2d 897

194 Miss. 253

DORSEY et al. v. LATHAM.

No. 35264.

Supreme Court of Mississippi

February 22, 1943

Harold Cox, of Jackson, for appellants.

Thos S. Bratton and L. F. Easterling, both of Jackson, for appellee.

SMITH Chief Justice.

In March 1938, the appellants sold and delivered to the Mississippi Truck Equipment Company, hereinafter referred to as the equipment company, six automobile trailers on deferred payments aggregating $1,746, none of which have been made. The equipment company was doing business in a building leased by it from the appellee and placed the trailers therein without any sign thereat, indicating that these appellants had a lien of any sort on the trailers. On January 1, 1938 it owed the appellee $475 unpaid rent for the preceding five months, for which he sued out an attachment for rent under which the constable seized the trailers and removed them from the leased premises, stored them elsewhere, and advertised them for sale under the warrant. Before the day set for the sale arrived, the equipment company filed a petition in bankruptcy and the sale was restrained by an order of the bankruptcy court under which the trailers were delivered by the constable to the trustee in bankruptcy. Thereafter, they were sold by this trustee on an order of the referee in bankruptcy instructing him so to do, which further provided that "if the trustee sells the property of the estate or any part thereof free and clear of liens, then and in that event all claims there-against by way of lien, mortgage, retained title contract or other encumbrance shall upon confirmation of such sale be thereby and hereby transferred to the proceeds realized therefrom, subject to further proceedings herein for the determination of the validity, amount, value and marshaling such liens, mortgages, retained title contracts and other encumbrances, as to which the proceeds shall stand in lieu of the property so sold, subject also to any and all other appropriate action."

Notice was given at this trustee's sale of the appellee's claim to a lien for rent on the trailers. No such notice was given on behalf of the appellants, but the trustee knew of its claimed lien. The appellants filed a claim in the bankruptcy court for the money received by the trustee in bankruptcy for these trailers. The appellee, as did the constable, from whose possession the trailers were taken by the trustee, filed a claim to $527.40 of the money to cover the amount due by the equipment company to the appellee and the court costs due the constable for serving the warrant. The referee in bankruptcy held, by order duly rendered, that the trustee in bankruptcy had no interest in this money and that it belonged to one of the other "of the parties hereto." The trustee then filed a bill of interpleader in the court below, paid the money to the clerk thereof, and prayed that the parties hereto be summoned to assert their claims thereto. The parties appeared and propounded their claims and pending final decree, an agreed order was entered directing the clerk to pay out of the money delivered to him by the trustee in bankruptcy the sum of $254.40 to the appellants herein, retaining the remainder until further order of the court. The evidence consists of a written agreed statement of facts and oral testimony, from which the foregoing appears. By its final decree, the court below directed its...