Dean v. Boyd

86 Miss. 204 | Miss. | 1905

Whitfield, O. J.,

delivered the opinion of the court.

This bill and the sequestration writ were not filed and used with any view of seeking an attachment in chancery. The writ of sequestration here was used in perfect conformity with the ancient and well-established use of the writ fox the purpose of impounding the property and holding it subject to the final decree of the court. This use of the writ belongs originally and inherently to the chancery court, and is independent of any statute. It is one of the most beneficent uses to which the writ has been put in chancery practice. See Am. & Eng. Ency. Pl. & Pr., vol. 19, p. 542. The expression “as in other cases” in Code 1892, § 489, merely means that the writ is to be used as it is used in other cases properly cognizable in equity. The contention of appellants that appellee waived his right in the trust deed, or under Code 1892, § 2293, to go against the cotton for his debt, by also taking security upon certain property of the husband, is manifestly untenable. It is not a case of separate securities, so far as the trust deed is concerned, but of the same security upon two separate kinds of property belonging to separate parties. But, quite independently of the trust deed, appellee had the right to subject the cotton to the payment of plantation and family supplies furnished and used on the wife’s farm, such supplies having been procured by the husband as the statutory agent of the wife. Code 1892, § 2293; Klotz v. Butler, 56 Miss., 333.

So far as application of payment is concerned, and payment in full of the claim is concerned, it is to be said that payment should be set up by plea or answer, and not by demurrer. It is a question of fact, and not of law. It may be added that the account shows on its face that not a dollar was ever applied from cotton on this claim, the last items of credit being August 8th, prior tq the maturity of the cotton crop. And, further, it is to be said that the bill expressly avers that more than $1,100 of the account was for family and plantation supplies actually furnished for, and actually used on, the wife’s farm, with her knowledge, and that more than $675 (which last is the amount of the unpaid balance) of said $1,100 remains due, unpaid. The demurrer could not admit the truth of these averments, and then attempt to show that $675 had been paid. As said, payment is a matter of evidence, and not the subject of demurrer.

It was perfectly proper for the chancellor to allow the bond to be amended. It is true the affidavit would have more accurately expressed the idea of the statute if it had followed its literal language; but if it should be held that it was error not to require the affidavit to be amended so as to conform literally to the statute, it would not be reversible error. If the case should be reversed for that, all that would be done in the court below would simply be to amend the affidavit immediately upon application, and proceed as before.

Substantial justice has been done, and the decree is affirmed, and the cause is remanded, with leave to answer within thirty days from the filing of the mandate in the court below.