Quarles v. Hucherson

• Citation: 139 Miss. 356,104 So. 148
• Decision Date: 18 May 1925
• Docket Number: 24849
• Court: Mississippi Supreme Court
• Parties: QUARLES v. HUCHERSON. [*]

104 So. 148

139 Miss. 356

QUARLES v. HUCHERSON. ^[*]

No. 24849

Supreme Court of Mississippi

May 18, 1925

Division A

1 REPLEVIN. Replevin is action ex delicto and not ex contractu. Replevin is an action ex delicto and not ex contractu.

2. PLEADING. Only writings which cannot be made basis of claim unless alleged and counted on need be annexed or filed.

Sections 734 and 735, Code of 1906 (sections 517 and 518 Hemingway's Code), which require writings which are the foundation of an action or of which profert is, or ought to be, made, to be annexed to or filed with the declaration apply only to writings of such character as cannot be availed of as the basis of the plaintiff's claim unless they are alleged and counted on in the declaration.

3. PLEADING. Allegations in declaration setting forth written instrument on which ownership is based are surplusage and may be disregarded.

A declaration in replevin, which alleges ownership in the plaintiff of the property sought to be recovered is sufficient, and allegations therein which set forth a written instrument on which the ownership is based are surplusage, and may be disregarded.

4. CHATTEL MORTGAGES. Appointment of substituted trustee complete without recording.

Unless required by the deed of trust or a statute, the appointment of a substituted trustee in a deed of trust is complete without the recording of the instrument by which the appointment was made in the office of the chancery clerk.

5. CHATTEL MORTGAGES. Provision against sale or other disposition of property broken by permitting sale under execution.

The provision of a deed of trust that the mortgagor shall not sell or otherwise dispose of the property therein conveyed is broken by the mortgagor's permitting a sale of the property under an execution issued on a judgment against him.

HON. J. I. STURDIVANT, Judge.

APPEAL from circuit court of Kemper county, HON. J. I. STURDIVANT, Judge.

Action by H. G. Hucherson, subtrustee, against R. M. Quarles. From judgment for plaintiff, defendant appeals. Affirmed.

Affirmed.

L. P. Spinks, for appellant.

I.

Under sections 517 and 518 of Hemingway's Code, the original deed of trust and the note secured by same, ought not to have been admitted in evidence. We think this is plain and that a mere reading of the statutes is conclusive on this point. The only escape as I see it, for the appellee, from these statutes, is for the court to hold: First: The action is not founded on a written instrument, and second: No profert was made or ought to have been made in the declaration of the deed of trust or note, or both.

But this action is founded on a written instrument. The right of the appellee to maintain the action rests wholly upon the execution and the existence of the deed of trust and note. Without this deed of trust and note, the appellant had no right to this piano, either against the original owner of the piano, K. G. Woods, or against the appellant. Under the law in Mississippi, the only plea admissible in action of replevin, is plea of general issue. Nunn v. Potter, 71 So. 315, 111 Miss. 180.

The refusal of the owner to deliver the property on demand by trustee, would have forced the trustee to establish both the existence and nonpayment of the debt and also the existence unsatisfied of the deed of trust. The appellant, in this action had the same right to know that a deed of trust had actually been given and still existed unsatisfied, that the original owner had.

The mere fact that this is a possessory action, does not mean necessarily that the suit is not founded on a written instrument. In examining the old codes, I find that the present statute, 517 Hemingway's, was not incorporated into the statutory laws, until the Code of 1892. The Code of 1871, section 581, definitely states that the objects of that statute were to cover actions on promissory notes. Therefore, when the legislature later wrote this law, as it is written in the Code of 1892, it broadened the application of the requirements, so as to cover any action founded on a written instrument, whether that action sounded in assumpsit or not. So far as I have been able to find, we have no Mississippi case directly in point. The case of Odom v. Harris, 34 Miss. 410, was a replevin suit, but the facts as related in that case are not the same as the facts here.

Nearly all the cases where this statute has been involved have been actions sounding in assumpsit. Eastman-Gardiner Hardwood Company v. Hall, 102 So. 272, is not in point as I understand it and does not help us in the consideration of this case. In that case, the action was, as said by the court, in tort for breach of contract. As I see it, there is no element of tort in this suit, but the suit is rather a suit for possession of the piano, founded on the deed of trust.

Further the right of the appellee, is a limited right only, and his demand would be satisfied by payment of the amount due on the note. Also when the chattel conveyed in the deed of trust was sold, the appellee, or his beneficiary would have the right to money demand for any balance unpaid of note, after applying the proceeds of the sale on the debt. This it seems to us, is absolutely conclusive on this proposition.

Any action to recover the debt or to enforce the lien on the piano for the payment of the debt, must rest on the note and the deed of trust. Therefore, we say that under section 517, Hemingway's Code, a copy of the deed of trust and note should have been annexed to or filed with the declaration. If we are right in this, then the case should be reversed, and judgment entered here for appellant.

II.

Coming now to discuss the second avenue of escape which involves the construction of section 518, Hemingway's Code, we say that the pleader in his declaration for all intents and purposes made profert of the deed of trust, when he referred to the record of same and asked that it be considered as though it was a part thereof. The statute on this is mandatory. It says, "A copy of any writing of which profert is made . . . shall be annexed to or filed with the pleadings . . ."

The deed of trust would be produced and it should have been annexed to or filed with the declaration. Not having done so, the appellee should not have been allowed to have introduced the deed of trust, in evidence. The court on objection of the appellant, ruled out any evidence of the existence of the note and deed of trust, on the ground that the note and deed of trust were the best evidence. Therefore, the appellee had to get in evidence the note and deed of trust.

III.

For the plaintiff to prevail in an action of replevin, he must rest on his own rights as established by his evidence and must further prove that he has the right to immediate possession of the chattel sued for. Scarborroughs v. Lucas, 80 So. 521. In Chambers v. Emery, reported in vol. 22, page 332, of American & Eng. Ann. Cas., and in the notes following the report of this case, the question is ably and thoroughly discussed and the conclusion to be drawn from those cases is that the right of the plaintiff must exist as of the date of the affidavit in replevin.

IV.

Section 2289 of Hemingway's Code, requires that where writings covering personal property are recorded, they shall be recorded in the chancery clerk's office. Section 2277 requires substitution of trustee, to be spread on the records. This section seems to refer primarily to lands but we would like to have the court construe this section as to whether it refers to chattel instruments. If it does refer to chattel instruments, then the suit was prematurely brought and should have been dismissed or judgment entered for appellant.

Baskin & Wilbourn, for appellee.

I.

Appellant contends that under and by virtue of section 517 and section 518 of Hemingway's Code, sections 734 and 735 of Code 1906, it was necessary for the plaintiff to have exhibited with his declaration a copy of the note and deed of trust securing the note and that since this was not done, that the lower court erred in admitting in evidence the note and deed of trust, over the objection of the appellant.

This point is not well taken. It is not contended that this is a suit on open account, of course, calling for any bill of particulars of the demand. But counsel seems to think that the action is one founded on a writing, and that therefore it was absolutely necessary for the plaintiff to have exhibited the writing or a copy of it with his declaration under the aforesaid sections. In this, we respectfully submit that the appellant is in error. The suit is not founded upon the note and deed of trust. They are but evidence of the right of the appellee to the immediate possession of the property. The appellee was not required to state in detail why he was the owner and why he was entitled to the immediate possession of the property, and a declaration without any reference whatsoever to either the note or deed of trust would have been perfectly good. See the case of Young v. Terry, 129 Miss. 281, 92 So. 76, in which case the court held a declaration in replevin to be perfectly good which omitted a statement in detail why the plaintiff was the owner of the property and why the plaintiff was entitled to the immediate possession of it.

At all events the defendant is not a party to the contract evidenced by the note and deed of trust, and has no right to complain that the pleader did not exhibit with his declaration the instruments that would have explained why the plaintiff was entitled to the possession of the property. No pleader is required to plead his evidence. See Eastman-Gardner Hardwood Co. v. Hall, 102 So. 270. Odom v Harris, 34 Miss. 410, supports the contention we make on...