McPherson v. Acme Lumber Co.

| Miss. | Mar 15, 1893

Woods, J.,

delivered the opinion of the court.

1. The law is well settled in this state, that the vendor of personal property, under a conditional sale, whereby title is reserved in himself until notes evidencing the,debt for the purchase-price have been paid, may sue in assumpsit on the notes, and, at the same time, institute replevin for the recovery of the property, title to which was retained, for the purpose of availing of this security for the payment of his debt. It is supposed, however, that, as McPherson, the appellant, has assigned and transferred all the unpaid notes to different parties, and that, as these third parties are suing in assumpsit on their respective notes, and McPherson is prosecuting this action of replevin, the rule of law stated above to be well settled in this state is inoperative in the case at bar. This supposition is unreal.

Waiving the rights of McPhei’son as an indorser on all the notes sued on, and his rights, because of his payment, since maturity, of $115 on one of the notes, there still can be no doubt as to his right to subject the property, title to which was retained in himself as security for the debt, to the payment of the unpaid notes. He alone can enforce-this security given for the purchase-price. The title was retained by him for the purpose of securing the notes given for the purchase-price of the kiln, and the title is in him; but he is only the trustee for the holders of the notes, with the rights and powers of such -trustee. ' On a recovery in this action, McPherson, as a mere trustee, must apply the money realized from the security to the payment of the debt secured by it; and, if the appellees, at any time, should entertain any fears as to the misapplication of the money recovered in this suit by the appellant, whereby it might be sought to enforce payment of the notes sued on in the other actions, after judgments obtained on them, *654by a simple appeal to the proper court, all fears may be allayed by McPherson’s being required to pay the money to those entitled to it, or by an order directing th§ money to be paid into court.. If the appellee shall pay the notes to the holders, or pay the money that may be realized in this suit, designed to enforce a security given for payment of the purchase-price of the kiln, to the trustee, McPherson, it may readily protect itself from a double payment. There does not seem to us to be the slightest danger of the appellee having to pay the same debt twice. If the notes shall be paid even now, that payment may be successfully interposed as a perfect defense to the further prosecution of this action of replevin.

2. That the burning of the- property after it had been replevied by the defendant, affords no defense in this action is decisively settled, in the opinion of this court, in the case of George, v. Hewlett, ante, 1, decided at the October term, 1890. The views of the learned counsel for appellee, on this poiut, were repudiated in a carefully prepared and exhaustive examination of this very question, and the case of Whitfield v. Whitfield, 44 Miss., which announced non-liability for the loss or destruction of property wrongfully withheld from the true owner, was, in express terms, overruled.

Reversed and remanded.