Sistrunk v. Wilson

• Decision Date: 06 February 1911
• Docket Number: 14695
• Citation: 54 So. 89,98 Miss. 672
• Court: Mississippi Supreme Court
• Parties: S.E. SISTRUNK BY D. W. SISTRUNK v. H. E. WILSON, SUBSTITUTED TRUSTEE FOR M. L. BRINSON

54 So. 89

98 Miss. 672

S.E. SISTRUNK BY D. W. SISTRUNK v. H. E. WILSON, SUBSTITUTED TRUSTEE FOR M. L. BRINSON

No. 14695

Supreme Court of Mississippi

February 6, 1911

APPEAL from the circuit court of Lawrence county, HON. R. L BULLARD, Judge.

Suit in replevin by appellant, Sistrunk, against appellee, Brinson for two mules. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

Jno. H Arrington, for appellant.

The case of Parker v. Payne, 48 So., p. 835, covers this case fully, both the majority opinion of the court and also the dissenting opinion in that case, for it is manifest, in the majority opinion, that had the court considered Payne to have actually owned the mules and had sold them to his tenant, Little, with verbal retention of title to the mules, the suggestion of error would have been overruled.

We submit the case of Parker v. Payne is decisive of this case. The court certainly erred in giving appellee a peremptory instruction, as there is not a single ground in the case to sustain it. The appellant, we think was clearly entitled to it, but if we are mistaken in this, then certainly the jury should have been permitted to have passed upon the facts on the case. Parker v. Payne, 48 So., p. 835; Alexander v. Zeigler, 84 Miss. 560.

G. Wood Magee, for appellee.

I think the cases of Parker v. Payne, 48 South., page 835, and Alexander v. Zeigler, 84 Miss. 560, cited by counsel for appellant are wholly inapplicable here. The agreement as to the sale of the mules is embodied in the note introduced in evidence, and no title is retained to the mules in this note, and neither party can be heard to say that title was retained.

In taking the note for the purchase money of the mules, appellant made no effort to retain title, but long after the note was given and long after Ross gave Mrs. Brinson the deed of trust on the mules, the appellant had Mr. Quilla Sauls in marking a credit on the note, to write on the back of the note something about the mules being his till paid for, but this action of appellant cannot and does not affect Brinson's lien. However, this shows that appellant knew he had waived his lien on those mules, and shows float he was then trying to dodge and defeat Mrs. Brinson's lien on the mules. There is no other explanation to this conduct of appellant. Why would he at this late day, in the fall of 1908, have the writing placed on the back of that note saying the mules were his, etc., unless he knew he had given Brinson a release of the mules from the purchase money he held? It is absolutely unexplainable, except upon the idea that he had "guilty knowledge" himself and was trying to defeat Mrs. Brinson's claim under the deed of trust.

Now in conclusion, I say that replevin will not lie under the facts of the case at bar.

The appellant, if he has any right at all, has only a lien for the purchase money on these mules. He has sold and delivered the mules to Charley Ross on a credit as stated by him, and he introduces a promissory note given him for the purchase money of the mules and his remedy, if any he has, is by proceeding to subject these mules to his lien.

Replevin is not the proper remedy for him even granting everything he says to be true, but he must follow the course marked out by statute. Under the facts of this case and the law he has no right to the immediate possession of the mules, and he must have this right before he can bring replevin.

The note he relies upon, and which he introduces, gives him only a lien on the mules and a lien is not enforced by replevin. Therefore with all the facts and the law before the trial court, a peremptory instruction was given for appellee, defendant in the court below, and I think properly and legally given.

OPINION

ANDERSON, J.

This is a replevin suit for two mules, by appellant, Sistrunk against the appellee, Brinson. The court below instructed the jury to return a verdict for appellee, which was done, and judgment entered accordingly, from which this appeal is prosecuted. In the early part of 1908 appellant sold his tenant, Charley Ross, a negro, two mules for two hundred and thirty dollars, to be paid January 1, 1909. On the 5th of March, 1908, the tenant, Ross, for the purpose of securing an indebtedness he was already due appellee, who was a merchant, and to obtain...