40 Ark. 75 | Ark. | 1882
On the 11th of February, 1881, Edwin P. Snipes brought this action of replevin in the Circuit Court of Jefferson county against James R. Pludson, for possession’ of mules, cotton, corn and cotton seed.
Plaintiff claimed title to the property under a mortgage executed to him by defendant 20th of February, 1880, to secure a note of that date for $3,000.00, payable 1st November following, bearing ten per cent, interest, with power, on default, &c., to take possession of the property, and sell it to pay the debt, &c.
The defendant answered in three paragraphs, to each and all of which plaintiff demurred; the Court sustained the demurrer; defendant declined to answer oyer; the parties agreed on the value of the property, and there was final judgment for plaintiff, and defendant excepted and appealed.
I. The first paragraph of the answer alleged, in substance, that the defendant had paid to the plaintiff, before suit, the sum of $2,000.00 on the debt secured by the mortgage under which plaintiff claimed title to. the property sued for.
This is not a bill in Chancery to ascertain the mortgage debt, and for decree of foreclosure, but an action of replevin by the mortgagee against the mortgagor for possession of the mortgaged property. After forfeiture, the mortgagee may bring replevin for the goods mortgaged, provided any portion of the indebtedness secured by the mortgage is still due and owing to him; and it is no defence to the action to show that a portion of the indebtedness has been paid before suit, but proof that the entire debt has been discharged is a good defence. Jones on Chattel Mortgages, Sec. 706; Marks v. McGhee, 35 Ark., 218.
II. The second paragraph of the answer alleged, in snbstance, that before suit, plaintiff was indebted to defendant for board and other things in the sum of $190.00, which is pleaded as a set-off to so much of the mortgage debt.
Whether on a bill in Chancery by the mortgagee to foreclose, or by the mortgagor to redeem, a set-off may be allowed against the mortgage debt, need not be considered in this case (see Nolley v. Rogers, 22 Ark., 230), which is an action of replevin for the property embraced in the mortgage, brought after default and forfeiture, and in which a set-off is not a proper defence. Gantt’s Digest, sec. 4572 ; Waterman on Set-off, sec. 144; Fairman v. Fluck, 5 Watts 516; McMahan v. Tyson, 23 Ga., 43; Nutwell v. Tongue’s Lessee, 22 Maryland, 419.
III. In the third paragraph of the answer defendant tempted to set up a counter-claim for two thousand dollars damages.
,The substance of this defence was that the mortgage debt was for money advanced by plaintiff to defendant to enable him to purchase mules, and pay for' labor to cultivate and gather crops of cotton and corn, on a plantation rented by him of plaintiff for 1880; and that during the growing and gathering seasons, plaintiff had maliciously inter-meddled with the hands of defendant on the plantation, and induced them to demand an increase of wages, &c., &e., whereby he had been damaged in the sum of $2,000.00 which with the part payment and set-off pleaded in the first and second paragraph ©f the answer, was alleged to be a full satisfaction of the mortgage, &c.
A counter-claim under the code is like recoupment at common law, and must be a cause of action in favor of defendant against plaintiff, Arising out of the contract or transaction set forth -in the complaint, as the foundation of plaintiff’s claim, or connected with the subject of the action. Gantt’s Digest, sea. 4570; Bloom v. Lehman et al, 27 Ark., 490.
The matter set up in the third paragraph of the answer, shows a distinct cause of action in favor of defendant against plaintiff for a malicious trespass, but not a counter-claim under the code.
Affirmed.
