Paine v. Hall Safe & Lock Co.

• Decision Date: 10 January 1887
• Citation: 1 So. 56,64 Miss. 175
• Court: Mississippi Supreme Court
• Parties: GEORGE C. PAINE v. HALL SAFE AND LOCK COMPANY

1 So. 56

64 Miss. 175

GEORGE C. PAINE v. HALL SAFE AND LOCK COMPANY

Supreme Court of Mississippi

January 10, 1887

APPEAL from the Circuit Court of Monroe County, HON. J. W. BUCHANAN Judge.

In 1885 the Hall Safe and Lock Company sold to Buder Bros. an iron safe for two hundred and twenty-five dollars, retaining title thereto until the purchase-money should be paid. The payments were to be made in installments, and one hundred and thirty-eight dollars were paid in that way. Buder Bros. were engaged in the business of jewelers. Over the storehouse in which they conducted the business the sign "Buder Bros." was displayed, and therein was the safe in question, which was in daily use in carrying on the business.

On June 14, 1886, one Garth, from whom Buder Bros. rented the store in which they were carrying on their business, sued out an attachment for rent, and levied it on this safe, found on the premises. The safe was sold under the attachment and bought by George C. Paine. The Hall Safe and Lock Company had no knowledge of the levy and sale of the safe, and the balance of the unpaid purchase-money thereof was not then due. In October, 1886, all the unpaid purchase-money being then due the Hall Safe and Lock Company demanded of George C. Paine the purchaser of the safe, the balance due them on the safe. On his refusing to pay it, the company brought an action of replevin against Paine to recover possession of the safe. By agreement the cause was submitted to the judge, who gave judgment for the plaintiff in replevin. The defendant, Paine appealed.

Judgment reversed and remanded.

George C. Paine, appellant, pro se.

1. When property has been attached under the provisions of chapter 50 of the Code of 1880, and a third party desires to claim the same, he must proceed as is indicated in § 1317 of chapter 50. This § 1317 gives the only remedy, and points out the manner of enforcing it. A failure to comply with it causes a forfeiture of all claims to said property. But for § 1317 all property on the demised premises would be liable to be distrained for rent. It being an innovation upon the common law, requires a strict compliance with the law before any relief can be had. To allow a party to bring the ordinary action of replevin, as in the case at bar, for property that has been attached, advertised, sold, and delivered, under chapter 50 of the Code of 1880, would be but to nullify § 1317 of said chapter. Section 1317 of the Code of 1880 is but a prototype of § 1631 of the Code of 1871. The supreme court of this State has had occasion to pass upon and construe this § 1631, and has in unmeasured terms condemned the practice of bringing the ordinary action of replevin instead of making claim, as is explicitly and clearly set out in said § 1631. See Maxey v. White, 53 Miss. 80, and Kendrick v. Watkins, 54 Miss. 496. The policy of § 1631 is clearly defined and explained in 58 Miss. 300-1.

The argument that defendant in error could not consistently make the affidavit required by § 1317, because Buder Brothers had an interest in the safe to the extent of the payments made, cannot be invoked in this proceeding; because if they did have such an interest it was only an equitable one and could only be ascertained and enforced by a court of chancery. The most that could be said would be that they were tenants in common, and if they were then the court erred in giving appellee the judgment, because of the familiar doctrine that one tenant in common cannot bring an action of replevin against the other.

2. Section 1300 of the Code of 1880 made liable to the creditors of Buder Brothers the safe and all other property that was used or acquired by Buder Brothers. J. W. Garth, the attaching creditor, was a creditor of Buder Brothers. The safe was used by Buder Brothers in their business. Then under § 1300 and the repeated decisions of this court the safe was liable. See 59 Miss. 266; 60 Miss. 238; 62 Miss. 814.

Houston & Reynolds, for the appellee.

1. The Code of 1880, § 2633, provides that the action of replevin shall not be maintained in any case of the seizure of property under execution or attachment when a remedy to claim the property is given in some other mode, and the party must resort to the specific mode prescribed. The "seizure of property under execution or attachment" will embrace a seizure under an attachment for rent. In Amstead v. Bernard, 62 Miss. 180, it is decided that the owner after the sale under execution or attachment may bring replevin against the purchaser, and why may he not bring the same action if the sale was under an attachment for rent? Not because at common law all goods found on the demised premises are liable for the rent, for when the goods "are in the hands of the tenant in the way of his trade," or are left, with the knowledge or consent of the landlord, in possession of the tenant, they are not liable. When the goods on the demised premises are not liable for rent, then replevin may be brought and maintained when they are liable for the rent, then, though replevin may be brought, it cannot be maintained. This is the argument made against bringing replevin against a purchaser under an attachment for rent, and we submit that it is not sound; the right to bring the action is one thing, and the ability to sustain it is another. We maintain that replevin can be brought against a purchaser under an execution, attachment, or attachment for rent; whether an action can be sustained or not depends on the particular facts.

But the Hall Safe and Lock Company could not have maintained the special remedy under § 1317 of code.

The contract between the Hall Safe and Lock Company and Buder Bros., they having paid one hundred and thirty-eight dollars of the agreed price, vested in the latter a "limited property or interest" in the safe. This is...