Mitchel v. McDavitt, James & Co.

• Decision Date: 10 April 1893
• Citation: 70 Miss. 608,12 So. 831
• Parties: J. W. MITCHELL v. MCDAVITT, JAMES & CO
• Court: Mississippi Supreme Court

12 So. 831

70 Miss. 608

J. W. MITCHELL v. MCDAVITT, JAMES & CO

Supreme Court of Mississippi

April 10, 1893

FROM the circuit court of DeSoto county, HON. EUGENE JOHNSON Judge.

In July, 1891, McDavitt, James & Co. recovered a judgment in the justice court against the firm of Thos. Fox & Co. and Thos Fox individually, and caused an execution thereon to be levied on three mules as the property of Thos. Fox. Thereupon, appellant, Mitchell, filed a claimant's affidavit and bond. The affidavit recited that the mules levied on were not the property of Thos. Fox, but belonged to the claimant, as trustee in a trust-deed executed by Thos Fox to secure an indebtedness to H. L. Fox. Issue was joined on this claim, and the trial in the justice court resulted in a judgment for claimant, and an appeal was taken to the circuit court. Without obtaining leave of court, Mitchell filed another affidavit, in which he claimed the mules in controversy as agent for H. L. Fox. Thereupon, plaintiffs in execution moved the court to strike this affidavit from the files, because the case had been tried in the justice court on an issue made between plaintiffs and Mitchell as trustee and not as agent, for H. L. Fox, and because H. L. Fox was not a party to that issue, and could not become such by merely presenting an affidavit, unaccompanied by a bond. This motion was sustained, and the second affidavit stricken from the files, and the parties proceeded to trial upon the issue as previously made up.

The plaintiffs introduced in evidence their judgment, and showed that the execution was levied upon the mules while in the possession of the defendant, Thos. Fox, and on this testimony rested.

The claimant offered in evidence a trust-deed executed in April 1891, by Thos. Fox, by which he conveyed to Mitchell, as trustee, certain land and personal property to secure an indebtedness of about $ 2,200 to H. L. Fox. The personal property embraced in the trust-deed consisted of about thirty-seven head of cattle and twenty-one mules and horses, and certain farming implements, and the trust-deed recited a previous lien on all the property in favor of Mrs. R. C. Miller for $ 4,000. The mules and cattle were not specifically described, the conveyance being merely of "thirty-seven head of cattle" and "twenty-one head of mules and horses." The note secured by the trust-deed was also offered in evidence, and it showed various credits "by cotton," "by cattle" and "by mules." The claimant contended that these had been delivered by Thos. Fox to him, to be applied in part payment of the note, and that the mules in controversy had been thus delivered.

The plaintiff in execution moved the court to exclude the trust-deed and note, because of the insufficiency of the description of the personal property sought to be conveyed, and because the claimant, under his affidavit as trustee, was seeking to litigate in the capacity of agent for H. L. Fox. The court excluded the trust-deed from evidence, but refused to exclude the note. The claimant then offered in evidence a bill of sale for five mules from Thos. Fox to himself, dated April 23, 1891; and this, as the testimony showed, embraced the three mules in controversy. Plaintiffs in execution also moved to exclude this bill of sale, because it tended to show title in Mitchell as agent instead of trustee for H. L. Fox. The court overruled this motion, and admitted the bill of sale in evidence.

Mitchell supported his claim by the testimony of himself and of Thos Fox, which was to the effect that, shortly after the execution of the note and trust-deed, Thos. Fox sent to Mitchell five mules to be sold and credited on the note; that H. L. Fox consented to take them at an agreed price, which was credited on the note, and the mules were placed in a livery-stable to be sold. They were kept there about ten days, and then returned to the farm of Thos. Fox for pasturage, Thos. Fox giving Mitchell a receipt for them, reciting that he held them subject to Mitchell's order. While thus in the possession of Thos. Fox, they were seized under the execution issued on the judgment of appellees, McDavitt, James & Co. Mitchell testified that when the levy was made, he notified the officer that the three mules in controversy belonged to H. L. Fox. The testimony of Mitchell was, in the main, corroborated by that of Thos. Fox, and there was no direct evidence introduced by plaintiffs in execution to rebut their testimony as to the facts connected with the sale. These witnesses were cross-examined at great length, and certain facts and circumstances were developed which, it is contended by counsel for the appellees, show the transaction between Thos. Fox and H. L. Fox to be fraudulent. Those mostly...