Weir-Booger Dry Goods Co. v. Kelly

• Decision Date: 21 April 1902
• Citation: 80 Miss. 64,31 So. 808
• Court: Mississippi Supreme Court
• Parties: WEIR-BOOGER DRY GOODS COMPANY v. WILLIAM M. KELLY ET AL

31 So. 808

80 Miss. 64

WEIR-BOOGER DRY GOODS COMPANY v. WILLIAM M. KELLY ET AL

Supreme Court of Mississippi

April 21, 1902

FROM the chancery court of Union county. HON. HENRY L. MULDROW Chancellor.

Weir-Booger Dry Goods Co., appellant, was the plaintiff in the court below; Kelly and others, appellees, were defendants there.

The opinion states the case.

Affirmed.

W. H Clifton, for appellant.

The bill alleges actual fraud on the part of both buyer and seller in the sale to W. M. Kelly, and contains other averments which might make the transaction assignable to the middle class of cases between actual and constructive fraud not cognizable in a court of law. Redfield v. Hewes, 67 Miss. 479; White v. Trotter, 14 Smed. & M., 32, 45, 46; Richardson v. Brooks, 52 Miss. 119. The complainant's right of subrogation to the rights of the sureties under the deed of trust could only be worked out in equity. Carpenter v. Bowen, 42 Miss. 28. The principle stated in Pool v. Doster, 59 Miss. 262, is recognized, but the liability of the sureties on the claimant's bond could be fixed in equity as well as at law. The ground of demurrer, that the complainant had a remedy at law, was no defense to the bill. They could be required to elect as to which remedy they would pursue, but the defense could have no other effect. Foster's Fed. Pr., sec. 129; Story's Eq. Pl., sec. 742; Mitford's Ch. Pl., 2, sec. 2, pt. 2; Daniel's Ch. Pl. (2d Am. ed.), secs. 658, 659; 1 Enc. Pl. & Pr., p. 773.

Stephens, Robertson & Stephens, for appellees.

The sureties on the claimant's bond having sustained no loss by reason of their suretyship, were without right to enforce the trust deed given to indemnify them, and the appellant could not be subrogated to a right of the sureties which the latter did not themselves have. Pool v. Doster, 59 Miss. 258; Bush v. Stamps, 26 Ib., 463; McLean v. Ragsdale, 31 Ib., 701.

OPINION

TERRAL, J.

On the 10th day of November, 1898, appellant sued out an attachment against the estate of Charles E. Kelly for the sum of $ 535 alleging among other grounds of attachment that Charles E. Kelly had disposed of his property with intent to defraud his creditors, which writ of attachment was levied upon a stock of goods sold by Charles E. Kelly to W. M. Kelly. W. M. Kelly replevied the stock of goods, and gave bond as claimant, with C. S. Robertson and H. D. Stephens as sureties, in which they agreed to pay appellant $ 1,070 unless said W. M. Kelly should prosecute with effect his claim to said stock of goods, or would restore said stock of goods to the attaching officer, and pay all damages awarded against him. W. M. Kelly, to indemnify said sureties against loss on account of their suretyship, executed to Liddell a deed of trust conveying to him a certain tract of land therein described. The appellant obtained in the circuit court of Union county a judgment against Charles E. Kelly upon the attachment issue, and also a judgment against Charles E. Kelly for the debt, amounting, principal and interest, to $ 776.08. W. M. Kelly in due course of law made affidavit to his...