Journey v. Priestly

• Decision Date: 20 March 1893
• Court: Mississippi Supreme Court
• Parties: G. W. JOURNEY v. W. M. PRIESTLY

12 So. 799

70 Miss. 584

G. W. JOURNEY v. W. M. PRIESTLY

Supreme Court of Mississippi

March 20, 1893

March 1893

FROM the chancery court of Madison county, HON. H. C. CONN Chancellor.

G. W Covington and G. W. Journey were partners, conducting a livery-stable business at Canton, Miss. The partnership effects consisted of horses, vehicles and other personal property. Journey owned an undivided one-third interest in the business, which, on January 18, 1892, he sold to B. F Billingslea, who became the partner of Covington, and the business was continued under the firm name of Covington &amp Billingslea. For the interest so purchased, Billingslea paid Journey $ 1,000 cash, and gave him his promissory note for $ 880, the balance of the purchase-money, payable January 1, 1893. The note contained a stipulation that it was for the "purchase-money of one-third interest in the livery business styled Covington & Journey, this day sold said Billingslea, the title to which interest is hereby reserved and retained in G. W. Journey and his assigns until this note is paid in full." It was not acknowledged or recorded. When the purchase was made, Billingslea took possession, and, with Covington, continued the business. Subsequently, Billingslea sold his one-third interest in the business to appellee, W. M. Priestly, who purchased and paid for the same without notice of Journey's claim. Thereupon, the business was continued by Covington & Priestly. Afterwards, Journey filed the bill in this case, setting up the facts above stated, and averring that the note executed by Billingslea was due and unpaid, and prayed that the undivided one-third interest in said partnership effects, sold by Billingslea to Priestly, should be subjected to the payment of said note. From a decree sustaining defendant's demurrer to the bill and dismissing the case, complainant appeals.

Reversed, demurrer overruled and cause remanded.

F. B. Pratt, for appellant.

Under the contract, the title to the property sold was retained in Journey as security for the unpaid purchase-money. Duke v. Shackleford, 56 Miss. 552; Dederick v. Wolfe, 68 Ib., 500. Having title to the property, complainant had the right to subject it in satisfaction of his debt. But, the interest being undivided, he could not resort to an action at law to get possession, and, hence, the chancery court had jurisdiction. Replevin would not lie in such case. Wells on Replevin, 154; Hoff v. Rodgers, 67 Miss. 208.

W. H. Powell, for appellee.

The demurrer was properly sustained. If the intention of Journey was to retain title, his remedy at law by replevin was adequate.

The note recites that a one-third interest in the business was reserved. This amounts to nothing, if it be not a lien to secure the purchase-money. It was not recorded. Priestly was a bona fide purchaser,...