Mason v. O'Brien

42 Miss. 420 | Miss. | 1869

Peyton, J.,

delivered the opinion of the court.

This was an action of trover instituted in the Circuit Court of Marshall county by Elizabeth A. O’Brien, widow of *426Charles O’Brien,deceased, and Charles O’Brien, Henry O’Brien, and Franldin. P. O’Brien, infant children of Charles. O’Brien, deceased, • by their next friend, Elizabeth A.' O’Brien, against William F. Mason and John B. McCarroll, to recover the value of a dentist’s lathe and a set of dental instruments.

The proof shows that Charles O’Brien, who was a dentist by profession, departed this .life in the fall of the year 1860, intestate, and in possession of the property in controversy. That at the time of his death he was indebted to the said William F. Mason in the sum of about two hundred and fifty dollars, for rent of a room in his house. That defendant John B. McCarroll was administrator of the estate of the said' Charles O’Brien, deceased, and that.the dentahinstruments had come to the. possession of the defendants, and that the same had been demanded from defendants before the institution of the suit, and had been refused to the plaintiffs. - To this action the defendants interposed the plea of not guilty, and upon this plea the cause was submitted to a j ury, who found a verdict for' the plaintiffs for the sum of $281. The defendants then moved 'the court for a new trial, which motion was overruled by the court, and judgment was rendered upon the verdict in favor of the plaintiffs against the defendants, who bring the case into this court by writ of error, and make the following assignments of error :

1. The verdict is excessive, and wholly unsustained by the evidence.

2. The court erred iu giving the charges asked by the plaintiffs in the court below, and in refusing that asked by the defendants in the court below.

The principal question presented by this record for our consideration, which has been argued with great ability by counsel on both sides, is, whether property exempt from execution and attachment is liable to be seized under attachment for the payment of rent.

In the examination of this interesting question we shall first take into consideration the second assignment of error, which involves the propriety of the action of the court in giving to the *427jury tbe instructions asked by tbe plaintiffs, and in refusing tbat asked by tbe defendants.

In the first instruction given for tbe plaintiffs, tbe court charges tbe jury tbat if they believe from tbe evidence Charles O’Brien, tbe husband of one and father of tbe other plaintiffs, was a dentist by profession, and tbat tbe instruments in controversy were tbe property of said O’Brien at bis death, and tbe plaintiffs are tbe widow and children of said decedent, then tbe property in said instruments, tb tbe value of two hundred and fifty dollars, vested in tbe plaintiffs upon tbe death of said decedent, discharged from any liability for tbe debts of tbe deceased or for rent due by him.

This instruction propounds tbe law correctly. The statute provides tbat tbe instruments of surgeons and dentists, used in their profession, not exceeding two hundred and fifty dollars in value, shall be exempt from seizure under execution or attachment. Rev. Code, 528, art. 280. • And it is further provided tbat tbe widow shall be allowed to retain and bold to her own use all tbe. personal estate of her deceased husband which is by law exempted from sale under execution or distress, and may hold tbe same free from sale under execution or distress, for any debt contracted by her said husband. Rev. Code, 469, art. 172. This statute was. amended by tbe Act of 1860, which provides tbat tbe widow and children shall take tbe exempt property jointly. Pamphlet Acts of 1860,'p. 875.

It has been decided by this court that tbe widow and children of tbe. deceased are entitled to all bis personal estate which is exempted by law from bis debts and liabilities, and tbat this property upon bis death descends directly to tbe widow and children, and vests absolutely in them, by operation of law, without any condition, limitation, or restriction as to their right to the same. Wally v. Wally, 41 Miss. 659.

This adjudication fully sustains tbe action of tbe court in refusing to give tbe instruction asked by tbe defendants.

Is there anything in tbe nature of Mason’s demand for rent winch relieves it from tbe operation of. this general law? We think there is not. It is specially provided tbat no property *428shall be exempt from execution, when the purchase-money thereof forms, in whole or in part, the debt on which the judgment is founded, nor shall any property be exempt from sale for non-payment of taxes or assessments, or for any labor done thereon, or materials furnished therefor. Eev. Code, 530, art. 284.

Had the debt of the landlord been one of the favored claims, it would in all probability have been inserted in this article, and the failure of the legislature to do so furnishes a strong presumption that the claim is subject to the general rule with respect to exempt property.

The common doctrine of distress for rent having been repealed by statute, constitutes no part of our system of jurisprudence. Instead of proceeding by distress as at common law, the statute provides that for the recovery of rent in arrear the proceeding shall be by attachment, which is simply a mandate, in the nature of an execution for a money demand, which is intended tobe executed without the intervention of the court, unless the debt or demand itself be disputed by the tenant. Towns v. Boarman, 23 Miss. 186.

When the terms “distress for rent” occur in the adjudications of this' court, as they do in the case of Canterbury v. Jordan, 27 Mss. 96, they invariably mean a proceeding by attachment since the adoption of the Code of 1857.

The second instruction given for the plaintiffs is as follows: If the jury believe from the evidence that the property in controversy was the property of the plaintiffs, and that said property came to the possession of defendants, and that the plaintiffs by themselves or their agent demanded the possession of the property, and defendants refused to give it up, this amounts to a conversion, and fixes the liability of the defendants; and the subsequent destruction of the property by the public enemy or otherwise cannot relieve them from such liability, and they must find for the plaintiffs. There is no error in this instruction.

The third instruction on the part of the plaintiffs is as follows: Property exempt from execution descends to the widow and *429children, exempted from the debts and liabilities of the deceased, whether his estate be solvent or insolvent. This instruction is in accordance with the decisions of this court. Coleman v. Brooks, 37 Miss. 71; Whitley v. Stephenson, 38 Miss. 113; and Wally v. Wally, 41 Miss. 659.

Having disposed of the second assignment of error, we come now to consider the first assignment of error, which is, that the verdict is excessive, and wholly unsustained by the evidence.

Joseph H. Farrell testified on the part of the plaintiffs that the dental instruments were worth from three to six hundred dollars.

Dr. S. P. Cutler testified that the dental instruments, the property in controversy, were appraised at less than two hundred dollars, and did not think them worth that sum.

John B. MeCarroll testified that he did not think the dental instruments in controversy wee worth more than one hundred and thirty or forty dollars. It thus appears that there was some conflict in the testimony as to the value of the property in controversy. It was the province of the jury to determine the value of the property from the testimony, and to render ■a verdict for the plaintiffs for that value, in case it should not exceed two hundred and fifty dollars, with interest thereon from the time of the conversion. We cannot say from the testimony that the verdict is excessive, and unsustained by the testimony, and will not therefore disturb it.

The judgment will be affirmed.