Blair v. Frank B. Russell & Co.

81 So. 785 | Miss. | 1919

Ethridge, J.,

delivered the opinion of the court.

Appellants sued out an attachment against the ap-pellees, alleging that the appellees were justly indebted unto the appellants in the sum of one thousand, seven hundred and fiftyfive dollars and that the defendants were nonresidents of the state, and that they fraudulently contracted the debt or incurred the obligation for which the suit has been or is about to be instituted. Writ - of attachment was issued, and the sheriff returned that he had levied the writ by taking into possession forty thousand oak staves on the right of way of the Frisco Bailroad valued at twenty-five dollars per thousand. Defendants filed a replevin bond. Thereupon appellants filed their declaration, alleging that on or before the 1st day of August, 1916, and during the “summer of said year, the appellees did willfully cut down and carry away one hundred and seventy-four white oak trees on the land of the plaintiffs described as the southeast quarter of section 31, township 14, range 16' east, without the consent of the plaintiffs, and that said trees were cut within twelve months before the beginning of the suit; where fore they demanded two thousand, six hundred and ten dollar^.

The defendants filed a motion to transfer the cause to the court of equity, alleging that their defense to the suit is purely an equitable defense; that on the 8th day of November, 1913, plaintiff W. F; Blair was then the owner of the southwest quarter and the north half of the southwest quarter of section 31, township 14, range 16 east, all in Monroe county, Miss.; that on the 8th day of November, 1913, said W. F. Blair bargained, sold, transferred, and conveyed to the defendants in consideration of one hundred dollars all the white oak timber suitable for staves now standing on the following described land, to wit: Containing two hundred and forty acres in Monroe county, Miss., with all necessary rights of way for cutting down and working up and removing the timber; that said contract was duly acknowledged by the plaintiff and filed for record ' and recorded; in the deed record of' the county, a copy of Tkhich is made Exhibit A to the petition; that at the time the plaintiff executed said deed he did not own the two hundred and forty acres described in the deed, but . did own two hundred and. forty acres described in the declaration, and that it was the purpose of the plaintiff and parties to said contract to insert in said deed said land described in said declaration, being in section 31, township 14, range 16 east, but that through mistake and inadvertence said, deed improperly described said lands. The contract made exhibit to this motion for transfer recited:

“That for and in consideration of the sum of one hundred dollars in hand ■ paid by the parties of the second part, the receipt, of which is - hereby acknowledged, the parties of the first part doth grant, sell, warrant, and convey to the said Frank B. Russell & Co., or assigns, all the white, oak timber suitable for "staves now standiiig on the following described .land, to wit, containing two hundred and forty acres in Monroe county, Miss., in section 14, township 12, range 16, with all necessary rights of way,” etc.

The record shows no action by the court upon this motion.

The defendants pleaded the general issue, and gave .notice under the general issue that defendants would prove that on the 8th day of November, 1913, plaintiff W. F. Blair executed and delivered to Frank B. Russell & Co', a deed to all the white oak timber suitable for staves now standing on the following described land, to wit: Containing two hundred and forty acres in Monroe county, Miss., in" section 14, township 12, range 16, with suitable rights of way to remove said timber and four years within which to do so; that the land intended to be described in said deed is the land set out in the declaration as belonging to plaintiff W. F. Blair; that in truth and in fact W. F. Blair was the owner of said two hundred and forty acres of land and the timber thereon, and had the right to sell the timber to Frank B. Russell & Co.,.and that they got a good title to the same; that they paid W. F. Blair the consideration of one hundred dollars, and at the time of the execution of the said deed and the.cutting and removal of said timber W. F. Blair was in possession of said land, claiming title thereto as against the world; that Frank B. Russell & Co. bought the timber in good faith; and.that he was in truth and in fact the owner of said land.

Plaintiff W. F. Blair was introduced in the attachment issue and testified that he sold the defendants 100 white oak trees for one dollar per. tree, or for one hundred dollars; that they went to Mrs. Hannah Blair, wife of W. F. Blair, who refused to sign the conveyance, and that the defendants agreed to take the risk, and that the agent of the defendant wrote out a contract and read it to witness ’W. F. Blair, showing the sale of one hundred trees for one hundred dollars; that he did' not have his glasses, and it was getting late, and he signed it, and later that the agent, with one Mr. Dowdle, a justice of the peace in the state of Alabama, came to his place and told him he wanted to make a change in the contract so that the one hundred trees would he from sixteen inches and up, and he told him, “No; let it stand as it was;” that afterwards when they began to cut the timber the hands claimed they had a deed to all of it; that he objected to their cutting the timber, and his wife objected, and told them not to cut any more timber; that the timber was on the homestead; that there was a long time between the time the contract was signed and the beginning of the cutting; that the contract signed was not signed by his wife, Mrs. Blair; and. that the defendants cut one hundred and' seventy-four white oak trees on the homestead without their consent' and against their will.

The circuit judge gave a. peremptory instruction to find for the defendant on the attachment issue and peremptorily instructed the jury to assess his damages at eighty-five dollars, attorney’s fee, for the wrongful suing out of the attachment, and submitted other items of damage, and there was a judgment on the attachment issued for the defendant with damages amounting to one hundred and ten dollars. Thereupon the case came on for trial on the debt issue, and plaintiff; testified on this issue substantially as above set out, and there was other testimony both for the plaintiff: and defendant on both the attachment issue and the debt issue, and at the conclusion of the testimony the court directed a verdict for the defendant on the debt issue also, from which judgments this appeal is prosecuted.' •

This court has heretofore decided that in attachments against a partnership, if one or more of the partners are residents of the state, the attachment cannot he maintained on the ground of nonresidence. The proof and record show that one of the partners, resided at Tupelo, Miss., and therefore the attachment could not he sustained upon the issue of nonresidence. Barney v. Moore Lumber Co., 95 Miss. 118, 48 So. 232. We think, however, that if the plaintiff’s evidence be taken as true, as it must be for the purposes of this appeal, the other ground of attachment was made out. The plaintiff. testified that he sold one hundred trees for one hundred dollars, and that the deed was read to him, in accordance with this contract by the agent of the defendant, and that he signed the (feed, not having his glasses so that he could read it, omthe belief that the deed was made in accordance with the agreement.

This is not a case of varying a deed by parol evidence. . The contract as actually drawn was void for uncertainty of description; but nevertheless, if the plaintiff’s evidence be true, it was drawn fraudulently for the purpose of obtaining more than one hundred trees, and the cutting of the timber was done under claim of right under this deed so fraudulently drawn according to the plaintiff’s evidence. The deed was used in the trial of this issue, not as a valid legal instrument, but as evidence of good faith, and it was evidently upon the theory of good faith that the court gave the peremptory instruction on the attachment issue, and but for the issue of good-faith there could be no question of the right of the plaintiff to recover for the trees so cut. On the debt issue it clearly appeared that a large number of trees cut were situated upon the homestead, and as the wife admittedly had not signed the deed, it was void .as to the homestead for the additional reason that is was not signed by the wife. This deed would, at most, only constitute the defendants licenses, which license would be. terminated when the plaintiffs gave notice not to further cut the timber. Walton v. Lowrey, 74 Miss. 484, 21 So. 243; Railroad v. Singleterry, 78 Miss. 772, 29 So. 754; Hubbard v. Sage Land & Improvement Co., 81 Miss. 616, 33 So. 413; McKenzie v. Shows, 70 Miss. 388, 12 So. 336, 35 Am. St. Rep. 654; Zukoshi v. McIntyre, 93 Miss. 806, 47 So. 435.

It follows from what we have said that the cause must be reversed as to both the attachment issue and the debt issue. .

If any of the trees sued for were at the time of the cutting on the land not constituting the homestead, and the defendants desire to have the contract reformed to describe the land in accordance with the real contract, the motion to transfer should be sustained on the remand of the cause. ' '

Reversed and remanded.