Spears v. Robinson

• Decision Date: 09 April 1894
• Citation: 71 Miss. 774,15 So. 111
• Court: Mississippi Supreme Court
• Parties: W. E. SPEARS v. C. L. ROBINSON

15 So. 111

71 Miss. 774

W. E. SPEARS v. C. L. ROBINSON

Supreme Court of Mississippi

April 9, 1894

FROM the circuit court of Lafayette county, HON. EUGENE JOHNSON Judge.

On December 22, 1890, appellee, Robinson, sued out an attachment against J. T. and William, Reeves, alleging that they were indebted to him, as landlord, one thousand pounds of lint cotton, valued at ninety dollars, for rent in arrear on certain land in Lafayette county for the year 1890, and fortyfive dollars for supplies furnished them by him as landlord. The attachment was levied on two bales of cotton fifteen hundred pounds of seed cotton and a lot of corn as the property of J. T. Reeves. Appellant, W. E. Spears, made affidavit and claimed the property, as trustee, in deeds of trust executed by said J. T. and William Reeves to P. W Spears. The justice of the peace issuing the attachment specially deputized one Williams to levy the same, and he made the levy and released the property on bond under the claim of Spears, without making return of the papers or the property to the sheriff or other officer, as required by § 2200, code 1880. In the court below the contention on behalf of the defendant, Robinson, was that, in 1889, he made a verbal agreement to sell the land to said J. T. and William Reeves, but afterwards made a contract with them by which he was to receive six bales of cotton per year as rent, taking their notes for the same, at the same time delivering to them a written agreement to take the six bales of cotton as payment for the rent. Four bales of cotton had been delivered to him before his attachment was sued out. Plaintiff, Spears offered in evidence a trust-deed, executed to him as trustee by J. T. Reeves April 25, 1890. The deed was in the usual form, and, after describing certain property and referring to the plantation cultivated by him, used the following language: "Also the crop of cotton, except four bales which is reserved and agreed upon, corn and produce which he may raise during the present year on said plantation or elsewhere." In connection with the deed, plaintiff offered to prove what cotton was reserved, but this testimony was excluded, as was the trust-deed, upon the ground that the description was void.

On behalf of plaintiff, the court refused instructions announcing that the law required one who is especially deputized to make a levy immediately after the execution of the writ, to deliver the same, together with the property, to the constable of the district, or to the sheriff of the county, and, if such was not done in this case, there was no valid levy on the cotton; that Williams, being specially deputized, bad no right to accept or approve the bond for the forthcoming of the property.

The second and fourth instructions given on behalf of defendant, referred to in the opinion, are as follows: "(2) The court charges the jury that, if they believe from the evidence that the two bales of cotton and the fifteen hundred pounds seed cotton were raised by Tom Reeves, and if the jury further believe from the evidence that the two bales of cotton and fifteen hundred pounds seed cotton levied on were delivered to P. W. Spears by Tom Reeves on a debt due to him, then the court instructs the jury that this suit in the name of W. E. Spears for said two bales of cotton and fifteen hundred pounds of seed cotton cannot be maintained, and as to such two bales of cotton and fifteen hundred pounds of seed cotton, they must find for the defendant, C. L. Robinson, regardless of whether any rent was due to him or not." "(4) The court charges the jury that the burden of proof in this case is upon the plaintiff, W. E. Spears; he must show by the proof that he, and not some one else, at the time this suit was instituted, was entitled to recover the property in question."

Verdict and judgment for defendant. Motion for new trial overruled. Plaintiff appeals, and assigns for error the following: (1) The court erred in excluding the trust-deed executed by J. T. Reeves to plaintiff as trustee for R. W. Spears. (2) The court erred in allowing the defendant to prove a verbal contract for the sale of the land in the alternative. (3) The court erred in allowing proof of a verbal contract in this case after it was shown that the contract was in writing.

The opinion contains such further statement as is necessary to an understanding of the questions decided.

Reversed and remanded.

J. W. T. Falkner, for appellant.

1. It was competent to show that the cotton in controversy was grown by the grantor during the year 1890, and therefore embraced in the trust-deed. Wasson v. Connor, 54 Miss. 351.

Further, as to the sufficiency of the description, see McGuire v. Stevens, 42 Miss. 724; Brown v. Guice, 46 Ib., 299; Foute v. Fairman, 48 Ib., 536; Moore v. Lord, 50 Ib., 229; Pegram v. Newman, 54 Ib., 612; Hunt v. Shackleford, 56 Ib., 397; Draper v. Perkins, 57 Ib., 277; Lochte v. Austin, 69 Ib., 271.

2. This action was begun under the code of 1880. Plaintiff had the right to show title in himself or in a third party. The rule governing the trial of a claimant's issue is applicable. Lavigne v. Russ, 36 Miss. 326.

Under the code of 1880, the burden of proof was on the landlord to prove the rent due, and that the property was subject to his attachment. This was not changed until the adoption of the code of 1892. See § 2531.

3. The defendant was permitted to prove, over the objection of plaintiff, a verbal contract for the sale of the land, and, in default of certain payments, then a verbal rent contract, and this, too, after it had been shown that the parties had put their engagements in writing. The truth is, the defendant had only a claim against the tenants for use and occupation.

4. The person deputized to execute the process, did not deal with it as the law directs. Code 1892, § 2404. Plaintiff's third and fourth instructions as to this should have been given.

5. Defendant's second instruction was erroneous, in that it told the jury that, if the property in controversy had been delivered to P. W. Spears by the tenants, then the suit could not be maintained in the name of W. E. Spears, ignoring the fact that the delivery was for the trustee, who had the legal title.

6. The fourth instruction is not a correct statement of the law. This instruction states that the burden of proof is on plaintiff to show ownership whether there is rent due or not. Under code 1892, for the first time in this state, is the burden of proof put upon the claimant. This case is governed by the former law. There is no proof in the record to sustain the contract alleged in the attachment for rent. If the amount was due from the tenant, it was either under a void contract for sale, which would only authorize a suit for use and occupation, or a rent note dated April 25, 1890, and it was not admissible in evidence, because not referred to in the affidavit. Pate v. Shannon, 69 Miss. 372.

7. The sole issue was whether the parties were the tenants of the defendant for the year 1890, and all evidence about the sale was inadmissible. Hawkins v. James, 69 Miss. 274.

8. The fact that the note recites that it was for rent, does not make it a rent note. Paxton v. Kennedy, 70 Miss. 865.

The court erred in refusing to grant a new trial, and the judgment should be reversed.

R. F. Kimmons, on the same side.

The verdict is contrary to the evidence, and should have been set aside. There was no rent contract, and the attachment for rent was wrongfully sued out. When Robinson accepted the six bales of cotton as a payment on the land, the contract could no longer be considered one for rent. The fact that he calls it a contract for rent does not make it such.

Williams, who was specially deputized, did not deal with the writ or the property as the law required. There was no valid levy, and the court had no jurisdiction. Tucker v. Byars, 46 Miss. 549; Barnett v. Ring, 55 Ib., 97.

The court erred in admitting parol testimony in regard to the contract between...