Jones v. Jones

Decision Date07 March 1932
Docket Number29849
Citation139 So. 873,162 Miss. 501
CourtMississippi Supreme Court
PartiesJONES v. JONES

Division A

1. REPLEVIN. That defendant, after giving bond for replevied property, surrendered part of property, and that officer accepted it, did not preclude defendant from asserting right to its possession.

That officer making levy accepted replevied property surrendered by defendant after she had given bond therefor did not preclude her from asserting right to its possession, for defendant need not have given bond at all, in which event property would have remained in officer's possession unless bond had been given by plaintiff.

2 GIFTS.

Defendant had burden of proving affirmative defense that replevied property was gift from plaintiff,

3 GIFTS. Testimony by defendant that replevied property was given to her by plaintiff held insufficient to show gift.

Evidence in question was simply that plaintiff gave the property to defendant, but by what words or acts plaintiff manifested an intention to make gift did not appear.

4. GIFTS.

To prove gift it must appear that donor intended to make gift, and also that he consummated it by actual, constructive, or symbolical delivery to donee.

HON. T. E. PEGRAM, Judge.

APPEAL from circuit court of Calhoun county HON. T. E. PEGRAM, Judge.

Action by J. W. Jones against Mrs. Martha Jones. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Reversed and remanded.

J. H. Ford, of Houston, for appellant.

Appellant was entitled to judgment not only that he retain the possession thereof but also for damages for its wrongful detention during the time appellee wrongfully withheld from him the possesion thereof.

Section 3098, Code 1930; Cook v. Waldrop, 133 So. 894; Thornton v. Gardner, 134 Miss. 485, 99, So. 131.

Appellant was entitled to recover at least nominal damages.

54 C. J. 614.

Since appellee voluntarily turned the two cows and calves over to him about two months after she made bond for them, when they became a burden to her, she was estopped to claim them on the trial of the cause.

When one voluntarily surrenders property to another believing, although erroneously, that the latter is entitled to it, he cannot maintain replevin therefor.

54 C. J. 447.

Appellee is estopped to set up in herself the defense of ownership.

54 C. J. 460.

Gifts inter vivos are not valid unless accompanied by delivery of possession.

28 C. J. 630-632, sec. 21; 12 R. C. L. 932, para. 10; Meyer v. Meyer, 106 Miss. 638, 64 So. 420; Woods v. Sturges, 116 Miss. 412, 77 So. 186.

Neither intention, nor mere words alone suffice, without delivery.

28 C. J. 633; Meyer v. Meyer, 106 Miss. 638, 64 So. 420.

In actions of replevin, "defendant has the burden of proving affirmative defenses."

54 C. J. 537; Stewart v. Graham, 93 Miss. 251, 46 So. 245.

The defense of gift is an affirmative one and the burden is on the defendant to show it.

Stewart v. Graham, 93 Miss. 251, 46 So. 245.

A gift inter vivos must be strictly alleged and proved, and particularly delivery by the donor with intent to vest title in the donee.

54 C. J. 668, sec. 70.

The burden of proof is on one claiming to be the donee of property to establish all facts essential to the validity of such gift.

54 C. J. 669-670; 12 R. C. L. 971, par. 44.

In the case of an alleged gift from husband to wife, there must be clear and convincing evidence of a delivery of the property by the husband with the intention of divesting himself of all dominion and control of it and of vesting it in the wife.

12 R. C. L. 973, para. 45.

C. A. Bratton, of Pontotoc, for appellee.

Appellee is not estopped to prosecute her suit as at the time she surrendered this property to the bailiff it was done with the distinct understanding that it would not effect her claim to the property.

The jury was told that to complete the gift there must be a delivery of the personal property. This answers the question raised by appellant as to the gifts inter-vivos.

OPINION

Smith C. J.

The parties hereto are husband and wife, who disagreed and separated. The husband sued out a writ of replevin against the appellee, his wife, by which he seeks to recover the possession of several head of live stock and a lot of household furniture, including a sewing machine, an organ, and a cooking stove. The appellee gave bond for the property, and it was left in her possession. Afterwards she surrendered most of it to the officer who made the levy, and he delivered it to the appellant.

When the case came on for trial, counsel for the parties seemed to understand--though the record does not disclose for what reason--that the appellee only intended to claim, of the property sued for, two cows and their calves, the sewing machine, the organ, and a cooking stove. The right to the possession by the appellant of the other property included in the writ is not clear from the evidence, but the case seems to have proceeded on the theory that he was entitled thereto.

The jury found for the appellee for the two cows and their calves, the sewing machine, and the organ, and a judgment awarding her the possession thereof was rendered. Neither the verdict nor judgment refers to the other property sued for. As hereinbefore stated, the appellee after giving bond for all the property returned some, but not all of it, to the officer who made the levy. The appellant offered, but was not permitted, to prove the rental value of a mule and a horse included in the live stock sued for; the evidence was excluded on the ground that it was speculative. We presume that by this was meant that the appellant did not sufficiently show that he knew what the rental value was. The evidence was sufficient, and should have been admitted, its value being for the jury.

One of the appellant's contentions is that appellee, by the surrender of the property after she had given bond therefor waived any further right to possession thereto. This contention is without merit. The appellee need not have given bond at all, in which event the property would have remained in the possession of the officer...

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    • United States
    • Mississippi Supreme Court
    • 19 Febrero 1940
    ...Miss. 426; Jackson Opera House Co. v. Cox, 192 So. 293; Harmon v. McFarlane, 135 Miss. 284; McClellan v. McCauley, 158 Miss. 456; Jones v. Jones, 162 Miss. 501; Gidden Gidden, 176 Miss. 98; Howell v. Ott, 182 Miss. 252; Ford v. Byrd, 183 Miss. 846. The general rule is stated in 12 R. C. L.,......
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    ...the burden of establishing same devolved upon appellant as the alleged donee. Stewart v. Graham, 93 Miss. 251, 46 So. 245; Jones v. Jones, 162 Miss. 501, 139 So. 873; Lamb v. Collins, Tex.Civ.App., 93 S.W.2d 490; 24 Am.Jur., Gifts, Sec. 115; 28 C.J. 670. Every element requisite to constitut......
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