35 Miss. 581 | Miss. | 1858
delivered the opinion of the court.
It appears, from the record in this case, that Seaborn Collins, having previously obtained a judgment in the Circuit Court of Yazoo county, against Samuel N. Ratliffe, caused execution to be levied on the negro man Brister, in controversy. Nancy Ratliffe, wife of the defendant in execution, interposed her claim under the statute, and gave bond for the trial of the right of property; an issue was found, and verdict and judgment rendered for the plaintiff in execution. This writ of error is prosecuted to reverse that judgment.
1st. Because the court erred, in granting the third instruction asked on the part of the plaintiff in execution.
2d. Because the court erred in refusing a new trial.
The' third instruction is in these words:—
“ That if the negro levied on, was bought with money for the payment of which defendant in execution was alone legally liable, the law is for the plaintiff in execution.”
Hjy.e evidence shows, that Samuel N. Ratliffe, the defendant in
He states his relationship to the claimant, and the insolvency of her husband, the defendant in execution. He then says, that Mrs. Ratliffe had an old negro woman; that his (witness’s) wife loaned her mother another negro woman; that in conversation with Samuel Ratliffe, he stated to him that he desired to secure a house for Mrs. Ratliffe and her children, and advised him, after telling him that he was willing to assist them, to purchase a tract of land from the bank. Ratliffe and' witness examined the land: a section was bought, — Ratliffe negotiating, — and the title was made to Mrs. Nancy Ratliffe, the claimant. The land was purchased at $1.25 per acre. "Witness advanced four hundred and fifty dollars of the money, taking Nancy Ratliffe and Samuel Ratliffe’s note therefor; that he looked alone to Nancy Ratliffe, as Samuel Ratliffe was insolvent ; that the note has never been paid, and he did not care if it was not paid; that the balance of the purchase-money for the land, was raised by the note of Nancy Ratliffe and the said Samuel, to Purvis, for four hundred dollars. Witness indorsed it, for the purpose of raising the money. Samuel Ratliffe took the note, and got the money. Witness paid a small balance on said note to Purvis; does not know who paid the rest. Two crops were made on another piece of land, by the two negro women and Samuel Ratliffe’s boys. The land was sold to Mrs. Heard, at $6 per acre, and the boy Brister purchased of his (witness’s) son, Thaddeus Luse, for the sum of $1100.
Under this state of facts, the instruction of the court assumes the law to be, that if the insolvent husband was “ alone legally liable,” notwithstanding he has never paid one dollar, and notwithstanding the purchase was made for, and the title vested in, his wife, by the aid and upon the responsibility of her son-in-law, who looks to her alone for the only portion of the land debt remaining
Neither the money,' credit, or labor, of Samuel Ratliffe have been lost to creditors, in the transaction, as the proof clearly shows. We think, therefore, there was error in the instruction of the court below, for which the judgment should be reversed, case remanded, and a new trial awarded; which is, accordingly, hereby ordered.