Scott v. Standridge
| Decision Date | 09 March 1926 |
| Docket Number | 15815. |
| Citation | 245 P. 591,117 Okla. 111,1926 OK 219 |
| Parties | SCOTT v. STANDRIDGE. |
| Court | Oklahoma Supreme Court |
Rehearing Denied April 6, 1926.
Syllabus by the Court.
Where property is held by a party under bond in a replevin action conditioned for the redelivery of the specific property, in the event he should not prevail in the action, such property is to be considered in custodia legis, the same as if the actual possession was with the officer.
Said property being in custodia legis, the proceeds of the sale thereof could not be applied as a credit upon the mortgage debt, for the satisfaction of which the same was being replevied, in order to be foreclosed under a chattel mortgage, until such replevin action had been finally determined. Farmers' State Bank v. Stephenson, 102 P. 992, 23 Okl. 695.
The sale of property pending the suit, while in custodia legis by the plaintiff, constitutes conversion and does not bind the defendant. And on the final trial of the cause, or in an independent action to recover the balance alleged to be due under the mortgage, the defendant is entitled to prove the reasonable market value of the property at the time of the sale and recover same, should plaintiff fail, and, in the event the plaintiff prevails, defendant is entitled to credit for such sum as the reasonable market value of the property is proven to be.
Additional Syllabus by Editorial Staff.
Giving replevin bond required by Comp. St. 1921, § 328, confers on plaintiff only right to possession of property and does not affect its title, and, if plaintiff was without title, sale by him pending action does not pass good title to purchaser.
Commissioners' Opinion, Division No. 5.
Appeal from County Court, Garvin County; J. D. Cofield, Judge.
Action by S. S. Scott against F. P. Standridge for the recovery of a balance alleged to be due on a promissory note. Judgment was rendered for plaintiff in the sum of $82.50, which was less than he asked, and he appeals. Affirmed.
O. W Patchell, of Pauls Valley, for plaintiff in error.
Blanton, Osborn & Curtis, of Pauls Valley, for defendant in error.
The plaintiff in error, S. S. Scott, as plaintiff, instituted this action in the county court of Garvin county on the 11th day of March, 1922, to recover $572.89 as a balance alleged to be due on a promissory note executed by the defendant, F. P. Standridge. It appears that this note had been given as part of the purchase price of an automobile sold to defendant by plaintiff and the note was secured by a chattel mortgage on said automobile and a team of mules.
After the note matured, and the defendant being unable to pay the same, the plaintiff demanded possession of the mortgaged chattels. The defendant refused to deliver the same, and the plaintiff instituted a replevin action in the county court for the possession of the property involved. Affidavit was made stating the value of the mules to be $200 and the automobile $115, bond was given, and writ of replevin issued. The mules and automobile were seized, and, the defendant failing to give redelivery bond, the sheriff turned the property over to the plaintiff. Without waiting for a judgment in the replevin action adjudging him to be entitled to the possession of the property, the plaintiff proceeded, while the replevin action was pending, to advertise the said mules and automobile for sale under the terms of the chattel mortgage. The plaintiff purchased the property at the sale for the sum of $20 each for the mules and $115 for the automobile, making a total of $155. Judgment was finally taken in the replevin action adjudging the plaintiff entitled to the possession of the property, and thereupon the plaintiff credited the sum of $118 on the note after deducting the expenses and costs, and instituted the present action for the balance of the note. The defendant pleaded a conversion of said property by the plaintiff and the wrongful sale thereof and alleged the true value of the property and sought to have the same credited on the note.
The evidence taken on the trial of the instant case is not incorporated in the record, but at the conclusion of the trial the court instructed the jury, in substance and effect, that the only issue for it to determine was the reasonable value of the property involved at the time of the sale on January 10, 1922; that the jury should find the reasonable value of the property and offset the same against the sum admitted to be due to plaintiff under the promissory note in the sum of $759.37; that, if said sum representing the reasonable value of said property is greater than the sum evidenced by the note, the jury should return a verdict for defendant for such excess; and, if said sum is less than the sum of $759.37, the jury should credit the same thereon and return a verdict for plaintiff for the difference.
The jury returned a verdict in favor of plaintiff in the sum of $82.50, having offset the real value of the property as determined by it against the indebtedness claimed to be due by the plaintiff.
The only proposition presented by counsel for plaintiff necessary to be considered is that, the plaintiff having given a bond in the replevin action, and the property having been turned over to the plaintiff by the sheriff, he was not required to wait for the termination of the replevin action before proceeding to advertise and sell the property. It is earnestly insisted that under such a state of facts the property was not in custodia legis.
The only question involved in the case is whether or not property...
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