Jones v. Horn
| Decision Date | 20 October 1888 |
| Citation | 9 S.W. 309,51 Ark. 19 |
| Parties | JONES v. HORN |
| Court | Arkansas Supreme Court |
APPEAL from Independence Circuit Court, J. W. BUTLER, Judge.
The appellant, Jones, who was the plaintiff in the court below to secure an existing indebtedness of $ 235.66 to V. Y. Cook and also the amount of future advances to be made by Cook executed to B. M. Cook a deed of trust, conveying to the latter certain mules, hogs and farming implements, and also all the corn and cotton which he might raise during the year 1886, on a farm belonging to the appellee, Horn. The deed was executed on the 9th day of January, 1886, and provided that the whole indebtedness should become due and payable on the first day of October following. On the 15th of June, 1886, V Y. Cook, after having advanced to Jones $ 50.90 in supplies for which, under contract with Horn, he held a first lien on Jones' crop, sold to Horn his debt on Jones and delivered to him the deed of trust.
It was stipulated in the deed of trust that, if default should be made in the payment of the debts, the trustee was authorized to take possession of the property without legal process, and to sell the same at public auction, for cash, after giving ten days' notice of the time, place and terms of sale. The deed also contained the following stipulation: "And it is distinctly understood that any neglect, ill treatment or abandonment of any of the aforementioned property, is, at the discretion of the said party of the third part, to work a forfeiture of all rights of said party of the first part therein, and this trust may be foreclosed just as if said indebtedness had matured and default in payment thereof had been made."
After his purchase from Cook, Horn furnished Jones, during the months of June and July, $ 50.70 in supplies and labor to assist him in cultivating his crop.
On the 9th day of August, 1896. Horn went into the field where Jones was ploughing, and without the consent of the latter, unhitched the mules from the plows and took possession of the mules, plows, gears, etc., mentioned in the deed of trust. He at the same time notified Jones that he took possession of the crop, and that Jones was thereafter to have nothing to do with it. At the time of the seizure of such property, Jones was indebted to Horn in the sum of about $ 351.00 on the mortgage and owed him the rent for the land on which the crop was growing. Horn advertised the property for sale under his own signature as "assignee," and had it appraised by three persons who were not previously selected and sworn as the statute requires, but who afterward made oath to their appraisement, which amounted to $ 424.00. By Horn's request, B. M. Cook, the trustee, attended at the time and place fixed by Horn's notice and offered the property for sale. Horn became the purchaser for the sum of $ 309.00, and Jones then sued him for the unlawful taking and conversion of the property and also for the use of the mules. Horn answered, setting up the execution of the deed of trust, his purchase of the debts secured, his advance to Jones, in addition to the advance made by Cook; that he took possession of the property under authority of the trustee, because of Jones' neglect to give the crop the necessary cultivation; that the gross value of all the property purchased by him, without deducting anything therefrom for rent due him, was less than the mortgage debt, and denying that the plaintiff had sustained any damage.
On the trial the court gave the jury, among other instructions, the following, which were objected to by the plaintiff:
1. The jury are instructed that if you find, from the evidence in this case, that the plaintiff was the owner of the property described in his complaint, and that he was in the peaceable possession thereof, and that the defendant unlawfully took said property out of his possession and afterwards wrongfully converted it to his own use, then you should find for the plaintiff, and assess his damages at the full value of the property so unlawfully taken and wrongfully converted, unless you further find from the evidence in the case, that by act of the plaintiff, under the deed of trust, the defendant had a right to foreclose the lien created by said deed, and in that event the damages would be the difference between the actual value of the property at the time of the taking and the mortgage debt; and if the value of the property does not exceed the mortgage debt, then you should only find for the plaintiff nominal damages.
2. The jury are instructed that if you find for the plaintiff, then, in arriving at the value of the property taken from him by the defendant, you should take as a basis the estimated probable yield of the crops of corn and cotton at the maturity of said crops, as shown by the evidence, and without making any deduction for what may have been wasted or destroyed, if any waste or destruction occurred, while in the defendant's possession. But if no waste or destruction occurred, then you should estimate the actual yield of the crop, and you should give plaintiff the highest market value of said corn and cotton, as shown by the evidence, at any time after the maturity of said crop and the commencement of this action, and this value you will estimate without regard to any outlay or expense which defendant may have incurred after he took possession of said crop. And in estimating the value of the other property, you should give the highest market value as shown by the evidence at any time after the taking and before the commencement of this suit, and to which you should add the value of the use of the mules from the taking to the commencement of this suit; unless they find from the evidence that the defendant had the right to foreclose his lien at the time of the taking, and in that event the measure of damages would be the value of the property at the time of the taking, and they would be authorized to find for the plaintiff nominal damages and whatever they may find from the evidence the property was worth in excess of the defendant's mortgage, if any.
3. The jury are instructed that if you find from the evidence that the plaintiff...
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Hudson v. Burton
...the appellee sold the cotton for less than the appellant's indebtedness to the appellee. Therefore, under the rule above announced in Jones v. Horn, the was not prejudiced by the ruling of the court in directing the verdict in favor of the appellee. The judgment is correct, and it is theref......
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