Walker v. Marseilles

• Decision Date: 19 December 1892
• Citation: 12 So. 211,70 Miss. 283
• Court: Mississippi Supreme Court
• Parties: IRIS WALKER v. C. I. MARSEILLES

12 So. 211

70 Miss. 283

IRIS WALKER v. C. I. MARSEILLES

Supreme Court of Mississippi

December 19, 1892

FROM the circuit court of Monroe county, HON. LOCK E. HOUSTON Judge.

This is an action of replevin, begun in the justice court, to recover a mare, two colts and several head of cattle. The mare and colts are admitted to be the offspring of a mare owned, in 1882, by one Bransford. Iris Walker claims to have purchased this mare from Bransford in 1883, the trade being verbal and on a credit. Bransford testified that the sale was made to Iris, but that he afterwards took a note of Ike Walker, her husband, for the agreed price, because he was the head of the family, and owned the farm on which the mare was to be used. The note was paid partly by Iris and partly by Ike Walker out of the proceeds of his farm, and the note, when paid, was surrendered to him.

Marseilles the defendant, claims all the property in controversy, under a bill of sale executed by Ike Walker, who died shortly after executing it, and before this suit was begun. It was shown in behalf of the defendant on the trial that Ike Walker claimed to own all the stock, and had incumbered them in favor of his creditors. Plaintiff, however, introduced the testimony of Dr. J. C. Word, that, before selling to defendant, Ike Walker declared to him that he did not own the mare and colt, and that they were the property of his wife. This, and other evidence of the same purport, was excluded, on the objection of defendant, and this action of the court presents the only question passed on in this court relative to the disputed ownership of the horses.

As stated above, Marseilles claims the cattle under a bill of sale from Ike Walker, while Iris Walker claims them under a written, but unrecorded, deed of gift, signed and executed in Alabama by Ike Walker, in 1871, conveying to her three cows from which she claims to have raised the cattle in controversy. At that time they were resident citizens of Alabama, but afterwards removed, with their effects including the cattle, to this state.

The instructions for defendant the giving of which the court holds were erroneous, are as follows:

"2. The court charges the jury that any deed or assignment of property between husband and wife must be acknowledged and recorded, otherwise such deeds are void as to creditors without notice, and do not confer any title; and if they find that the deed of gift from Ike Walker to Iris Walker of the cattle was not recorded, then the jury will find for defendant as to the cattle.

"3. The court charges the jury that if they believe, from the testimony, that Ike Walker, the husband, gave his note for the horses bought of Mr. Bransford, and that Ike Walker rented the lands on which the crops were grown that paid for said horses, then this placed the legal title of said horses in Ike Walker, and he had the right to mortgage or sell said horses, and if they believe he did sell them to Marseilles they will find for defendant."

Judgment for defendant. Motion for new trial overruled, and plaintiff appeals.

Judgment reversed.

R. A. Word, for appellant.

1. The testimony of Dr. Word was competent. Ike Walker's declarations in disparagement of his own title were competent after his death. Whitfield v. Whitfield, 40 Miss. 352; 1 Greenl. Ev., §§ 109, 190, 191.

2. It was error to grant the second instruction for defendant. The gift between the husband and wife was in 1871, when our law did not require a transfer to be acknowledged or recorded. The code of 1880 cannot apply to the contract previously made.

3. The third instruction is erroneous. It is not a question of law whether Bransford sold the mare to the husband or to the wife, but a question of fact. Newmark on Sales, § 156; 1 Parsons on Contracts, 528; Myrick v. Wills, 52 Miss. 149. The testimony conclusively shows the sale to the appellant.

Gilleylen & Leftwich, on the same side.

1. The taking of the note of the husband for the sale to the wife did not make him the purchaser. That the husband afterward made a payment, did not affect the legal title. Henry v. Dillard, 68 Miss. 536; Ohleyer v. Bernheim, 67 Ib., 75.

2. It was error to exclude the testimony of Word and others as to the statements made by Ike Walker, now deceased, and against his interest. 40 Miss. 369; 1 Greenl. Ev., §§ 109 190, 191. The gift of the cattle by Ike Walker to his wife, made in Alabama, was good as between the parties. Possession was delivered to her, and has been kept up continuously in this state. See Tied. on Sales, § 11; Carradine...