43 So. 951 | Miss. | 1907
delivered the opinion of the court.
This is an action under the general statute of replevin, brought by Brumfield against Lloover. The value of the property seized by the sheriff under this writ of replevin was $323. The seizure,' however, was based upon the nonpayment of a note of $66.66, which, if that were determinative, would be within the jurisdiction of a justice of the peace. The facts are not disputed, and are these: Brumfield and one Anthony had been partners, and while so partners sold the property in controversy to Hoover, and took from Hoover a series of notes for $66.66, payable to the partnership, or order, and in each note it is specified that the title and ownership of the property should remain in the partnership until the note was paid. Subsequently Anthony bought all the interest of Brumfield in the partnership property. Bor this interest Anthony gave a series of promissory notes for $189.65, each payable to Brumfield, or bearer, in which it is also specified that the title to an undi
The circuit court had jurisdiction, it being determined by the value'of the property seized. It was unnecessary in this action at law to make Anthony a party. It may be that Anthony might himself have brought the suit under the assignment; but Brumfield not only had the right, but it was his duty to Anthony, to realize the money due from Hoover by-this sort of an action. See Brame & Alexander’s Digest, on page 1048, paragraphs Nos. 18, 25, 27, 35. It will not do to confuse this ease with that of Biddle v. Paine, 74 Miss., 497, 21 South., 250. The distinction' between the general action of replevin and the particular one under the statute in reference to distress by landlords is plainly, marked out by judge Whitfield, speaking for the court in that case. Neither will it do to confuse this ease with that of Journey v. Priestly, 70 Miss., 586, 12 South., 799. In that case it was necessary to invoke the jurisdiction of equity, because Priestly had bought an undivided interest in partnership property, and that interest had to be ascertained by an action. But in that case Judge Campbell, in the conclusion of his opinion, shows that, if the purchase had been of specific articles, the general action of replevin could have been sustained. The ease before us is not to try title, but the right to possession.
Reversed and remanded.
