Thompson v. Poe

• Decision Date: 21 April 1913
• Docket Number: 15,846
• Citation: 104 Miss. 586,61 So. 656
• Court: Mississippi Supreme Court
• Parties: MRS. RUBY THOMPSON v. E. F. POE

61 So. 656

104 Miss. 586

MRS. RUBY THOMPSON v. E. F. POE

No. 15,846

Supreme Court of Mississippi

April 21, 1913

APPEAL from the circuit court of Monroe county, HON. J. H. MITCHELL Judge.

Suit by E. F. Poe against Mrs. Ruby Thompson. From a judgment for defendant, plaintiff appeals.

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

Affirmed.

Wiley H. Clifton, for appellant.

The valuation of the property fixed by the affidavit controls the jurisdictional amount, unless it be shown that the plaintiff knowingly and designedly undervalued the property. Neither the testimony of witnesses nor the finding of the jury that the property had been undervalued in the affidavit is conclusive of this jurisdictional fact, but the testimony must go further and show that the undervaluation was falsely made for the purpose of giving the court jurisdiction. Fenn v. Harrington, 54 Miss. 733; Ball v Sledge, 82 Miss. 749, 35 So. 447; Broomfield v Horner, 90 Miss. 502, 43 So. 951; Stephen v. Eisman, 54 Miss. 535.

Argument on Property:

But we insist that where there is a verdict of the jury, supported as here by a great preponderance of the testimony, fixing the valuation of the property at almost twice that fixed in the affidavit and on motion for new trial no explanation is given the court why there was such a large undervaluation; then the falsity of the affidavit and the purpose to evade the jurisdiction of the court is shown. The intent to avoid the jurisdiction of the circuit court by an undervaluation of the property is to be drawn from all the facts and circumstances in the case.

Powers conferred by deed are to be strictly construed and especially must the execution of the power be in manner and form as prescribed, by the deed. The power vested by this deed in the beneficiary to appoint a substitute trustee was required to be under the "hand and seal" of Dukemanier Bros. The language of the appointment is "witness my signature, T. J. Dukemanier."

Though a scroll is attached, it is not made or referred to as the seal of T. J. Dukemanier; and therefore it is not under the seal of T. J. Dukemanier even. The appointment of this substituted trustee was made by T. J. Dukemanier alone; while the deed required that Dukemanier Bros. should execute the power. Perry on Trusts, No. 511 B., No. 288; Sharpley v. Plant, 79 Miss. 175, 28 So. 802; Watson v. Perkins, 88 Miss. 64, 40 So. 646.

This appointment being void E. F. Poe has neither title nor right of possession to the property; and even if the deed of trust had not been paid, cannot recover in this case. R. C. 1906, No. 4214; Buck v. Paine, 52 Miss. 271.

The burden of proof being on the appellant gave him the right to open and close the case before the jury. This right was denied and for this error the case will be reversed. Porter v. Still, 63 Miss. 357; Stewart v. Graham, 93 Miss 257.

Paine & Paine, for appellee.

The law of this state is that the value of the property at the time of the suing out of the writ determines the jurisdiction. And before such a valuation can be impeached successfully the impeaching testimony must show that this value was falsely made for jurisdictional purposes. See Johnson v. Tabor, 57 So. 366.

We submit, therefore, that under the law and facts in this case the first proposition of counsel for appellant is untenable. As to the second proposition argued by counsel for the appellant the facts upon which he bases his argument is contradicted flatly by the record. The only answer we can make to this proposition of counsel is that the facts in the case do not sustain his contention. We call the court's attention to the record as to this proposition and submit that the record and the facts stated in the brief of counsel for appellant are absolutely at variance, are wholly irreconcilable. For example: Counsel asserts that T. J. Dukemanier appointed the substituted trustee in the deed of trust, when the record shows that the beneficiary in the deed of trust, Dukemanier Bros., appointed this substituted trustee and attached to their appointment the word seal. This we submit is a full compliance with the conditions of the deed of trust. See 79 Miss. 192; 4 Howard, p. 363 and 8 S. & M. 485.

If the record in this case sustains our assertion and argument, which we submit it does, then the above proposition argued by counsel for appellant is fallacious because it is not sustained by the facts.

As to the proposition argued by counsel that the judgment could not have been for more than one hundred and thirty-five dollars, we submit is correct law; is a correct proposition of law. And in justification of our writing the judgment as appears from the record we state that we argued with the court and counsel that no judgment in dollars and cents should have been rendered and that the only proper verdict that could be rendered was that "we, the jury, find that plaintiff was entitled to the property and value it at $ , etc." We know this statement is contrary to the opinion delivered in the case of Johnson v. Tabor, 57 So. 366, but we submit that that decision on that point is error and that case on that point should not be the law of the state of Mississippi. However, in order that this case may not be reversed and fearing that the court may not see its error in the above cited case and in order to place our argument in line with the decision we now here consent and agree that a remittitur may be entered reducing the judgment to one hundred and thirty-five dollars, the value of the property as appears from the writ of replevin.

We respectfully submit that the case should be affirmed and judgment entered in the sum of one hundred and thirty-five dollars.

Argued orally by Geo. C. Paine, for appellee.

OPINION

REED, J.

This is an action in replevin, brought by appellee as substituted trustee in a justice of the peace court to...