Ellis v. Reaves

• Decision Date: 05 January 1895
• Parties: ELLIS v. REAVES.
• Court: Tennessee Supreme Court

28 S.W. 1089

94 Tenn. 210

ELLIS v. REAVES.

Supreme Court of Tennessee.

January 5, 1895

Error to circuit court, Trousdale county; W. T. Smith, Judge.

Replevin in a justice's court by H. C. Ellis, trustee, against A S. Reaves. From a judgment, on appeal to the circuit court for defendant, plaintiff brings error. Reversed.

John S McMurry and J. J. Turner, for plaintiff in error.

S. F. Wilson, W. C. Dismuke, and W. B. Hale, for defendant in error.

CALDWELL J.

This is an action of replevin, brought by H. C. Ellis, trustee, before a justice of the peace, to recover from A. S. Reaves the possession of several horses and one mule. Pending an appeal by Reaves from the magistrate's judgment, all of the stock, except the mule, were eliminated from the case by agreement. The controversy as to the mule was submitted to the circuit judge, without a jury, and he pronounced judgment in favor of the defendant. The plaintiff appealed in error.

On the 11th of May, 1891, the defendant, Reaves, executed a deed of trust, whereby he conveyed to the plaintiff, Ellis, as trustee, certain live stock and other personal property, to secure the payment of certain debts to the Bank of Hartsville. By the terms of the trust, it matured April 1, 1892; but, at the request of the maker, foreclosure was postponed for several months, and some of the horses conveyed (being the same originally involved in this suit) were not sold until after their recovery herein before the justice of the peace. When all of the property specifically named in the conveyance had been sold, and the proceeds properly applied by the trustee, there remained unpaid about $1,200 of the secured debts. The deed contained no provision with respect to the possession or increase of the property while the trust should continue, and there was no agreement between the parties concerned as to either. Reaves, the maker, however, retained the possession of all the property until it was needed by the trustee for sale, and of some of the horses until this action was brought to recover them. Among the live stock conveyed was a roan mare, which Reaves, of his own motion, and without consultation with the trustee, bred to a jack, soon after the deed of trust was executed. About the time the trust matured, the mare foaled a mule colt, which is the animal now in controversy in this case. The dam and foal ran together until weaning time, both in the possession of Reaves; and the mule was retained by Reaves until June, 1893, when this suit was commenced by the trustee for its recovery. Upon these facts, is the mule the absolute property of Reaves, as ruled by the circuit judge, or does it belong to Ellis, as trustee?

Perhaps no rule of property is more general or just than that the offspring of a domestic animal belongs to the owner of the dam or mother. 2 Bl. Comm. 390; 3 Lawson, Rights, Rem. & Pr. § 1370; Tyson v. Simpson, 2 Hayw. (N. C.) 147. The ownership of mortgaged property, or of property conveyed in trust, is divided. Neither the mortgagor nor the mortgagee, the maker nor the trustee, is the full and complete owner; each has an interest. In this state the legal title to such property passes at once to the mortgagee or trustee; and he becomes entitled to immediate possession, unless otherwise provided in the deed. Bank v. Ewing, 12 Lea, 600. The conveyee, in such a case, takes the property, in all of its parts and elements, so far as required for the purposes of the conveyance; while the conveyor, if the property be personalty, is left only the right to reclaim it by payment of the secured debts before foreclosure, or to receive the residue, if any, after foreclosure; and, if the property be realty, he has the additional right of redemption after foreclosure, unless that right is cut off by the terms of the conveyance. So long as the secured debts remain unpaid, in whole or in part, the title of the conveyee is paramount, and that of the conveyor subordinate. As against the debts, the conveyor can assert no right or title. Such, unquestionably, were the respective interests of Ellis and Reaves in the roan mare, whose foal is the subject-matter of this litigation; and that such are their respective interests in the foal itself follows, logically, from the principle that the offspring of a domestic animal belongs to the owner of the dam or mother. Thus, by the application of plan principles, the controversy is resolved in favor of Ellis, the trustee. It matters not that the mare was bred by the maker after the execution of the deed of trust; for in such case, as well as if she had been previously bred, the title of the foal would follow the title of the dam without variation, in the absence of some provision or agreement to the contrary. Since the whole legal title and right to immediate possession of the mare, with all of her powers and elements of value, her brood-bearing capacity with the rest, passed to the trustee, without qualification or restriction, the legal status of the offspring would be the same in either case. The title of the foal is separable from that of the dam only by some provision, agreement, or contract made for the purpose of disuniting them. If Reaves incurred liability for the service of the mare, the fee might be a prior charge, under the statute, upon the foal; but that would be equally true if the service had occurred before the deed of trust was made. Sims v. Bradford, 12 Lea, 434.

The text writers, with great unanimity, support our view upon the main question. Jones says: "Under the rule that the incident follows the principal, a mortgage of domestic animals covers the increase of such animals, though it is silent as to such increase; and it is not incumbent upon the mortgagee to take and hold the property as against a purchaser of such increase." Jones, Chat. Mortg. (4th Ed.) § 149. Cobbey says: "The general rule of law is that the offspring or increase of female animals, when they come into visible existence, and are endowed with independent life, rest under the same title or ownership their dam was subject to at the time they were brought forth. *** The offspring of mortgaged animals, which are born after the making of the mortgage, are subject to the lien of such incumbrance. *** Under the rule that the incident follows the principal, a mortgage of a female...