Durham v. Slidell Co.
| Decision Date | 21 June 1909 |
| Docket Number | 13,880 |
| Citation | 94 Miss. 140,49 So. 739 |
| Court | Mississippi Supreme Court |
| Parties | VETURIA V. DURHAM v. SLIDELL COMPANY |
FROM the circuit court of Lamar county, HON. WILLIAM H. COOK Judge.
The Slidell Company, appellee, a judgment creditor of William L Durham, appellant's husband, caused an execution to be issued on his judgment and levied upon certain horses and buggies found in a stable belonging to the appellant, Mrs Durham. The husband, defendant in execution, had the property in his possession and under his control. The plaintiff in execution claimed that it was liable to execution by reason of the statute, Code 1906, § 4784, because her husband was conducting a "livery and feed stable" business without having a sign on the premises disclosing his principal, etc.
Code § 4784, is as follows: "If a person shall transact business as a trader or otherwise, with the addition of the words 'agent,' 'factor,' 'and company,' or '& Co.,' or like words, and fail to disclose his principal or partner by a sign in letters easy to be read, placed conspicuously at the house where such business is transacted, or if any person shall transact business in his own name without any such addition, all the property, stock, money and choses in action used or acquired in such business shall, as to the creditors of any such person, be liable for his debts, and be in all respects treated in favor of his creditors as his property."
Mrs. Durham, appellant, having claimed the property, an issue was made up for trial to determine its liability to levy and sale under the execution.
The testimony is sufficiently shown by the opinion of the court. From a judgment in plaintiff's favor the claimant appealed to the supreme court.
Reversed and remanded.
Scott & Parker and J. A. Alexander, for appellant.
Under Code 1906, § 4784, the right is given a creditor to take the the property of a third person to settle the debts of the debtor when it is shown by evidence that the property was "used or acquired" in a business transacted by the debtor, as a "trader or otherwise" (which means one ejusdem generis), and that such business was transacted by the debtor "in his own name" or a name with the same effect. Even though all the features of the statute have been satisfied and it has been proven that the business was operated in the name of the debtor, and that the nature of such business was that of a "trader," yet the limit of recovery, even in that case, would only extend to that property which the evidence shows was "used or acquired" in transacting such business. There is no evidence in the record to show that the property seized was used or acquired in the business of William L. Durham, or any other business. And until this burden had been carried by the creditor of defendant Durham, it had no right to appropriate the property of Mrs. Durham to the satisfaction of the debt of her husband. The trial court was in error in granting a peremptory instruction to find for the plaintiff in execution, because the plaintiff in execution, appellee here, failed absolutely to carry the burden placed upon it by virtue of the statute, in showing that the property levied upon by the sheriff was used or acquired in the business.
In all the cases decided by this court, construing this statute it is held that three things, or conditions, must exist before the statute can be applied, and they are: (1) That the judgment debtor, transacted business "as a trader or otherwise," (2) that the property sought to be subjected to execution, was "used or acquired in the business" of the trader, and (3) that the trader "transacted business in his own name," or in one that had the same effect. Gumble v. Koon, 59 Miss. 264; Quin v. Miles, 59 Miss. 375; Shannon v. Blum, 60 Miss. 828; Wolf v. Kahn, 63 Miss. 814; Loeb v. Morton, 63 Miss. 280; Adams v. Berg, 65 Miss. 3, 3 So. 465; Evans v. Henley, 66 Miss. 148, 5 So. 522; Bank v. Studebaker, 71 Miss. 544, 14 So. 733; Meridian Land Co. v. Ormond, 82 Miss. 758, 35 So. 179; Dale v. Harrahan, 85 Miss. 49, 37 So. 458, and others.
William L. Durham was not doing business as a trader or otherwise; if the record shows anything about the nature of the business, it shows that he was running a livery and feed stable business only. The sum total of the evidence as to this is that of the witnesses Shanks and Walker, to the effect that they had hired teams there, and Shanks' statement that he had heard that Durham had sold horses and buggies, which evidence was duly objected to as hearsay. And this hearsay evidence is all the proof that we have of any sale, and that does not designate any time or place, or show that it was in this business. The statute says: "If a person transact business as a trader or otherwise . . ." which latter word "otherwise," has had defined by this court to mean one ejusdem generis (Yale v. Taylor, 63 Miss. 598), and we submit the legal definition of the "livery and feed stable business" is radically different from a general livery stable business.
C. G. Mayson, J. W. Shanks and McWillie & Thompson, for appellee.
The possession of the property levied on was in the defendant in execution; the law presumes him to have been the owner. Possession is prima facie evidence of title. Kitchen v. Brennan, 53 Miss. 596; Jones on Evidence, § 71.
In case of the trial of the right of property levied upon under execution, plaintiff is entitled to a verdict, when he shows that defendant in execution was in possession of the property when levied upon. The burden is then on claimant to establish title. Ross v. Lawson, 105 Ala. 351, 16 So. 890.
The defendant in execution was shown to have been operating a public livery stable for some years prior to and at the time of the levy; was shown to have been the...
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