Richardson v. Toliver

• Decision Date: 23 April 1894
• Citation: 16 So. 213,71 Miss. 966
• Court: Mississippi Supreme Court
• Parties: BEN RICHARDSON, TRUSTEE, v. KIMMIE TOLIVER

16 So. 213

71 Miss. 966

BEN RICHARDSON, TRUSTEE, v. KIMMIE TOLIVER

Supreme Court of Mississippi

April 23, 1894

March 1894

FROM the circuit court of Wilkinson county. HON. W. P. CASSEDY Judge.

Replevin by appellant, trustee in a deed of trust, against appellee for a horse. The horse belonged to appellee, the wife of Willis Toliver, who, on January 22, 1891, gave a trust-deed thereon to secure a debt to Rothschild & Bro., merchants. On July 6, 1891, he gave them another trustdeed, and on March 12, 1892, a third. Appellant, as trustee in the last deed brought this action for the recovery of the horse. Defendant testified that she knew nothing of her husband's giving a trust-deed on the horse, and denied having made any admissions as to such knowledge. The opinion contains a further statement of the facts. The court gave a peremptory instruction for defendant. Judgment accordingly. Plaintiff appeals.

Reversed and remanded.

D. C. Bramlett, for appellant.

Appellee is estopped. Silence, when one should speak, is equivalent to concealment. 7 Am. & Eng. Enc. L., p. 12. It was appellee's duty to speak when the deeds were executed, and when she purchased goods of the beneficiaries on her husband's account secured by the trust-deed. It was error to give the peremptory instruction. The issue of fact should have been submitted to the jury on proper instructions.

J. H. Jones, for appellee.

Conceding, for argument's sake, appellee's authority to her husband to give the first trust-deed, this did not authorize him to continue pledging the property.

The beneficiaries evidently knew of appellee's ownership at the outset, else why ask her about the title to the horse?

A former agreed judgment is no estoppel in a subsequent suit between the same parties. Bigelow on Estoppel, p. 19; 11 Jur. N. S., 107.

There must be mutual consent to any renewal. Bigelow, p. 12; 8 Bart, 419.

To work an estoppel, there must be a misrepresentation or a misleading contract. Bigelow, p. 437.

When there is no opportunity to speak, silence is not an estoppel. 7 Am. & Eng. Enc. L., p. 13, and notes.

The law does not favor divesting the wife's property by the action of the husband. Dozier v. Freeman, 47 Miss. 647.

Under these authorities, appellee was not estopped, and the judgment is right.

OPINION

WOODS, J.

There is a direct conflict in the evidence in a material matter and the peremptory instruction given for defendant below was error. Morris Rothschild testified that, after the execution of the first trust-deed by appellee's husband, on one occasion, when appellee was making some purchases in the store of Rothschild & Bro. & -- the beneficiaries in the trustdeed -- on the account secured by that deed, the witness...