Myers v. Daughdrill

• Decision Date: 09 May 1932
• Docket Number: 30004
• Citation: 163 Miss. 298,141 So. 583
• Court: Mississippi Supreme Court
• Parties: MYERS et al. v. DAUGHDRILL et al

141 So. 583

163 Miss. 298

MYERS et al. v. DAUGHDRILL et al

No. 30004

Supreme Court of Mississippi, Division B

May 9, 1932

APPEAL from circuit court of Lawrence county, HON. J. Q. LANGSTON Judge.

Action of replevin by E. C. Myers, trustee, against H. L. Daughdrill and another. From a judgment in favor of defendants against plaintiff and the sureties on his bond plaintiff and his sureties appeal. Reversed, and modified judgment rendered for defendants.

Reversed and modified judgement here for appellees.

E. B Patterson and C. E. Gibson, both of Monticello, for appellants.

If the chancery court assumes jurisdiction of a case that should properly be in a law court, then it has the power and the right to apply the principles of law applicable to the case that would be applied in a court of law. Conversely if a court of law assumes jurisdiction of an equity case, after motion to transfer, it should be invested with the power to apply the principles of equity that would be applied by a chancery court.

Rankin v. Ford, 134 So. 178.

A judgment should not and cannot be permitted to stand for more than the pleadings demand and that under no circumstances in the state of the pleadings in this case could a judgment for damages of more than sixty dollars be permitted to stand.

Willisford v. Meyer-Kiser Corporation, 139 Miss. 387, 104 So. 293; Wyatt v. Drennen Motor Company et al., 125 So. 649; McCloud v. Womack, 95 Miss. 439, 50 So. 66; Johnson v. Taber, 101 Miss. 78, 57 So. 365.

The bond given by the plaintiff is very incomplete, containing no promise to pay and specifying no amount. However, section 758, Code of 1930, would cure the defects in the bond and would fix the penalty of the bond at four hundred dollars.

Section 3089, Code of 1930.

If in a case where the bond provides for more than the law requires no recovery can be had in excess of the amount required by law, no recovery can be had on a bond which does not specify anything in excess of that required by law.

55 L.R.A., 390; 87 Am. Dec. 741; Menhim v. Frank, 57 Miss. 732, 58 Miss. 283; 54 C. J. 647-648.

No recovery for loss of time on attending court is allowed.

100 So. 23; 40 Miss. 352, 49 Miss. 236.

G. Wood Magee, of Monticello, for appellee.

If the court had sustained the motion to transfer the action it would have permitted appellant to take an unfair advantage of appellees, and our courts never give their approval to such.

Rankin v. Ford, 124 So. 178.

If the judgment in this case is for more than it should be against the sureties, it is still good as against the real party appellant, Jefferson D. Riley.

Appellant complains that the court erred in permitting defendant to recover damages for loss of time in attending court and defending this case. I shall not take issue with appellant on this contention.

Thornton v. Gardner, 99 So. 131; Mars v. Germany, 100 So. 23.

Appellant also contends that interest should not have been allowed in the judgment from the date of the seizure till date of judgment. I think he is right about that.

OPINION

Griffith, J.

On the 26th day of November, 1929, Mrs. H. L. Daughdrill and her husband executed and delivered to the F. L. Riley Mercantile Company a deed of trust on certain lands and also on two mules. No other personal property than the mules was included in the descriptions, but there was an after-acquired property clause reading as follows: "And any increase of all property, real or personal, that may be hereafter acquired by purchase or otherwise, the title to which unto said Trustee, or any successor, they warrant and agree forever to defend." There was a default in the payment of the debt secured by the deed of trust, and E. C. Myers, who had been duly substituted as trustee, was directed by the beneficiary to proceed to enforce the said trust deed.

On or about the 26th of March, 1930, Mrs. Daughdrill acquired by purchase four cows, and when in April, 1931, the trustee set about the enforcement of the deed of trust, he demanded of Mrs. Daughdrill that she deliver to him as trustee, not only the personal property specifically described in the deed of trust, but also the after-acquired property above mentioned, which demand as to the after-acquired property was refused. Thereupon the trustee instituted an action of replevin for said four cows, valuing them in his affidavit for replevin at two hundred dollars in the aggregate. The writ was issued, and the cattle were seized by the constable, who in his return valued the cattle at two hundred dollars. Mrs. Daughdrill did not exercise her statutory right to give bond and retain possession, and thereupon the plaintiff, Myers, gave bond as is authorized under section 3089, Code 1930, and the property was delivered to him by the officer. It is noted that the bond given by Myers is informal and does not recite the amount for which given and for which the sureties thereon were to be bound, but under section 758, Code 1930, when taken in connection with section 3089, Code 1930, the law writes into the bond a penalty of double the value of the property as ascertained by the return of the officer, and thus the penalty of the bond in this case is four hundred dollars.

The trial in the justice court resulted in favor of the defendants, and the trustee appealed to the circuit court. On the trial in the circuit court, defendants made the point that the plaintiff trustee had no legal title to the said after-acquired property, and hence no right of possession because at the time of the execution of the deed of trust the grantors therein did not actually own said property, and at the said time there was no potential ownership thereof in the grantors, that the only title in the trustee was, at best, an equitable one which would not of itself support a demand for immediate possession. See Bacot v. Varnado, 91 Miss. 825, 47 So. 113. The trustee thereupon conceded the point that his title was one enforceable only in equity, and moved the court to transfer the cause to the chancery court, which motion was overruled. The trial thence proceeded to judgment...