McCarty v. Key

• Decision Date: 15 January 1906
• Citation: 39 So. 780,87 Miss. 248
• Court: Mississippi Supreme Court
• Parties: WILLIAM H. MCCARTY v. JAMES G. KEY

39 So. 780

87 Miss. 248

WILLIAM H. MCCARTY v. JAMES G. KEY

Supreme Court of Mississippi

January 15, 1906

FROM the circuit court of, second district, Carroll county, HON J. T. DUNN, Judge.

Key the appellee, was plaintiff, and McCarty, the appellant, was defendant in the court below. From a judgment in plaintiff's favor defendant appealed to the supreme court.

Reeves executed a trust deed to Moore, trustee, to secure certain existing indebtedness and advances to be made to him by Fox to whom he delivered a note for the amount of the indebtedness. The agreement in the trust deed was "that said property is now free from all general and special taxes and judgments, decrees, and liens of all kinds." It pledged certain crops, etc., to the payment of the debt. The debt so secured became due and payable, and Reeves failed to pay the same; and Moore, the trustee, having refused to act Key, the appellee, was substituted in his stead as trustee and sued out a writ of replevin against McCarty, the appellant, who had come in possession of a bale of cotton which had been delivered to him by Elizabeth, an infant daughter of Reeves, who had lived with her father and worked under his direction in the cultivation of the crop. The daughter claimed that the cotton had been given to her in payment for her services. Reeves requested the ginner to mark the bale of cotton with his daughter's initials, but the ginner refused to do so, for the reason that he had not previously had notice that the cotton belonged to any one but Reeves, and did not know that Elizabeth was a wage hand. The cotton was taken to market by Elizabeth, the daughter of Reeves, and delivered to McCarty. Key, in his affidavit in replevin, did not designate himself as "trustee," and signed his name without adding the word "trustee."

Affirmed.

McClurg, Gardner & Whittington, for appellant.

The affidavit in replevin should have been made by Key as trustee; and while amendments are liberally allowed, it was never intended that amendments should be allowed so as to make entirely new parties.

In instruction number one for appellee the trial court announced to the jury that the burden of proof was on the appellant defendant below. This is not a correct announcement of the law, and it was error to grant this instruction. Porter v. Still, 63 Miss. 357. It was incumbent upon the appellee to prove that the bale of cotton in controversy was subject to...