Hunter v. Forrest

75 So. 753 | Miss. | 1917

Stevens, J.,

delivered the opinion of the court.

The facts of this ease are not in dispute. The record shows that one James Hunter was, prior to March, 1915, engaged in the furniture business in the town of Itta Bena. He became financially involved, filed a voluntary petition in bankruptcy, and his estate was duly administered in and by the bankruptcy court. Hunter was permitted to claim two hundred and fifty dollars worth of his stock of furniture as exempt, and certain articles of furniture were accordingly set apart to him as exempt. The articles of furniture chosen or selected as exempt were removed from the main stock of goods and placed by Mr. Hunter in the'store of his neighbor merchant, one Chas. Posner. Thereafter the trustee in bankruptcy offered the stock of goods for sale and sold the same to the highest bidder. Mrs. Annie Hunter, the wife of the bankrupt, desired to bid on this stock of goods, and to this end gained the consent of Mr. H. B, Forrest to appear at the sale and bid in the stock in Forrest’s name but for the use and benefit of appellant who furnished the consideration. Mr. Forrest bid the sum of two hundred and eighty dollars for the remaining stock, and thereafter by agreement with Mrs. Hunter the furniture business was renewed in the name of IT. B. Forrest, but with funds advanced by Mrs. Hunter. The name of H. B. Forrest appeared at the place of business, also checks were drawn by him, the bank account was kept in his name, and so far as the public was concerned H. B. Forrest was the owner of the business. It appears that Mr. Forrest himself had little to do in conducting the business, but James Hunter, the former bankrupt, did the clerking and managed the business. After Forrest bought the stock, James Hunter turned over to him the articles of furniture which he had selected as exempt, and these exempt articles thereupon became a part of the stock. It appears that James Hunter delivered his exempt property for the purpose of stocking the furniture business, and placed the articles in the store for the purposes of sale. During the month of April, 1915, Mr. Forrest died, intestate, and thereafter his wife, the appellee herein, was appointed administratrix of his estate. Mrs. Forrest thereupon, as administratrix, asserted her right to the possession of the stock, and instituted this action of replevin against James Hunter; and Mrs. Annie Hunter thereupon filed a claimant’s affidavit, contending that she was the owner of the business and had the right to the possession. Mrs. Hunter, the claimant, executed a bond and took possession under and by virtue of her claimant’s bond. On the trial of the claimant’s issue in the circuit court, there being no controversy about the facts, the trial judge peremptorily charged the .jury to find for the claimant as to all property involved in the suit, except the exempt property before that time selected by James T. Hunter, list of which is in evidence, and the specific articles were set out in the instruction. From the judgment entered in pursuance of the peremptory charge, Mrs. Hunter ■ prosecutes a direct appeal; while Mrs. Forrest, as administratrix, prosecutes a cross-appeal.

Mrs. Hunter claims that she is the principal, that she furnished the entire consideration for the purchase of the stock, and all moneys with which the business was conducted and is the full owner. Mrs. Forrest invokes section 4784 of the Code, commonly known as our “sign statutes,” contends that by virtue of this statute H. B. Forrest’s estate is liable to creditors, that the creditors of H. B. Forrest have a right to satisfy their demands from the proceeds of the sale of the stock, and that she, as administratrix, represents her deceased husband’s creditors, and therefore has a right to the possession of the stock for the benefit of creditors. The record does not disclose probated debts against the estate of H. B. Forrest, deceased, but letters of administration had been recently granted, and the time for probating accounts had not expired.

If this were a contest solely between Mrs. Hunter and H. B. Forrest or the representatives of H. B. Forrest, it may be conceded that appellant should prevail. But Mrs. Forrest institutes this action as the administratrix, and as such she represents the interest of creditors of H. B. Forrest, deceased, and is charged with the duty of bringing needed suits for the recovery of property or for the collection of debts owing the decedent. In our judgment, section 4784, Code of 1906, is applicable, and the creditors of H. B. Forrest have a right to proceed against the stock. If the creditors of H. B. Forrest could levy upon this stock during his life-' time they should be accorded the right to satisfy their demands out of the proceeds of the stock after his death. The stock under the statute stands charged with the debts of the ostensible owner, and this record shows that to all appearances the business belonged to H. B. Forrest, and was being operated in his name. The only uncertainty arises out of the failure of the record to show affirmatively that there are any creditors having provable accounts against the estate of H. B. Forrest, deceased. We are justified in assuming that the very purpose of the administration was to pay debts and at the same time conserve the equities of H. B. Forrest’s heirs or representatives. The only sure way of knowing whether there are creditors is to take out administration, make leg’al publication' to the creditors, and by complying with the statutes cause the statute of limitations, the time allowed creditors to probate accounts, to run against creditors having provable claims. This time at the trial of this suit had not expired. Presumptively Mrs. Forrest had the right of possession, until all creditors are paid. We accordingly hold that the property should have been delivered to her to be disposed of under proper orders of the chancery court and for the purpose of paying the lawful debts of the decedent. We see no distinction.to be made between the articles of furniture at one time claimed by James Hunter as exempt and the balance of the stock. The so-called exempt property was by James Hunter voluntarily turned over or delivered to PI. B. Forrest for the purpose of stocking the business, and, when delivered, became merged in the stock as a part thereof, and liable for the debts of the business. After James Hunter had successfully claimed these articles as exempt, he had a right to dispose of them as he saw fit, and in the exercise of this right he elected to turn them over to H. B. Forrest for the use and benefit of his wife, Mrs. Hunter, the undisclosed principal. He put the articles in the store with the view of having them sold as part of the stock.

The main inquiry in this suit is: Who had the right of possession? We think the judgment should have been in favor of Mrs. Forrest, appellee and cross-appellant. In reaching this conclusion we are mindful of the fact, frankly conceded by counsel for appellee, that the heirs of H. B. Forrest have no right to the stock or the proceeds thereof. In delivering possession to the administratrix, then, it should be done without prejudice to the right of Mrs. Hunter, the real owner, to claim the property or any surplus thereof after the debts of H. B. Forrest are paid. We believe the rights of the parties can can well be conserved by proper orders of the chancery ■court. We see nothing to prevent the chancery court having jurisdiction of the estate of H. B. Forrest from keeping a separate inventory and account of this stock; and, after seeing that the probated debts are fully satisfied, the chancellor court could well direct any remaining portion of the stock or proceeds thereof to be delivered to appellant as the real owner. If insisted upon, the exemption claimed by the husband, James Hunter, could be dealt with separately and his rights as the legal owner of these articles fully protected. It is sufficient to say that in this proceeding the right of possession of Mrs. Forrest as administratrix is superior, and this is true solely because of section 4784 of our Code, and because, further, Mrs. Forrest represents the interest of creditors. The result reached by us finds support in the recent cases of Merchants’ & Farmers’ Bank v. Schaaf, 108 Miss. 121, 66 So. 402; Gillaspy v. Harvester Co., 109 Miss. 136, 67 So. 904; Hardware Co. v. Harvester Co., 110 Miss. 783, 70 So. 892.

The judgment of the learned circuit court will be reversed on cross-appeal, and judgment entered here in favor of appellee, Mrs. Forrest, awarding her possession of the entire stock or the true value thereof, but without prejudice to the right of Mrs. Hunter to claim her equity in the property after the creditors of H. B. Forrest are satisfied.

Judgment here for cross-appellant.