86 So. 298 | Miss. | 1920
delivered the opinion of the court.
Appellant, Jesse Richmond, instituted an action of replevin against M. L. Langston in the circuit court of' Jeff Davis county for the recovery of the possession of two mules alleged to be AATongfully detained by Langston. Appellee, W. F. Boone, filed a claim for the mules in question., and the trial of this claimant’s issue resulted in a judgment against Richmond and the sureties on his forthcoming bond, and from this judgment Richmond prosecutes this appeal. ,
A statement of the facts in chropoligical order will materially aid in understanding the question presented here for decision. In 1908 M. L. Langston, who was the owner of certain land and personal property, being indebted to W. F. Boone, executed a deed of trust to secure this indebtedness, and this instrument was duly recorded. This deed oE trust covered two mules and two hundred and forty acres of land, but by mistake íavo hundred acres of land was erroneously described as being located in section 30, instead of section 31. In 1910 Langston executed another
The evidence is uncontradicted that this trade was made' with the consent of Richmond, and that upon Langston’s return from Louisiana he tendered these mules in place of the' ones traded off, and Richmond accepted them. On - January 1, 1915, Langston sold these mules to appellee, Boone, giving a bill of sale therefor, and the agreed purchase price was credited on Langston’s indebtedness to Boone. On January 15, 1915, Boone resold the mules to Langston, talcing a note with reservation of title for the purchase price. On January 25, 1915, Langston executed a note to appellant, Richmond, for rent of the mules for the year 1915, and in December following he refused to surrender possession of the mules, and thereupon Richmond instituted suit in replevin to recover possession of them. Thus ended Langston’s devious dealings with these mules.
In November, 1914, appellee, Boone, filed a bill in the chancery court against M. L. Langston.and Jesse Richmond, seeking to reform the deed of trust which was executed in his favor in 1908, and seeking a foreclosure there-. of. An amended bill was filed in February, 1915, and upon final hearing the chancellor dismissed the bill as to the land alleged to have been conveyed by mistake, but ordered the remaining land sold, and rendered a personal decree against Langston for the balance due, after allowing as a
At the'conclusion of the evidence-in this case a peremptory instruction was granted in favor of the claimant, Boone, upon the theory that the decree in the chancery suit was an adjudication of appellee’s right and title to the mules. We think this was error. The chancery proceedings sought only to reform and foreclose a deed of trust executed in 1908, anfi the mules involved in this suit were not covered by that deed of trust, and they are not mentioned in any of the pleadings in the chancery suit. In fact, the appellee, Boone, did not acquire the claim of ownership which he is here asserting until after the original chancery bill was filed.
In determining the balance due complainant, Boone, at the date of the decree, the chancellor allowed Langston credit for the value of the mules which he had sold to Boone while the chancery suit was pending; but the allowance of this credit does not constitute an adjudication of appellee’s right and title to the mules. The question of the validity of appellee’s title does not appear to have arisen until long after the conclusion of the former suit. It was not in issue in the former suit on the face of the pleadings, and it does'not appear from the record that this question was decided by the court. The rule which controls this case is announced in 23 Cyc. pp’. 1313,1321.
It follows from these views, that appellee’s motion for a peremptory instruction should have been denied and upon this record we think appellant’s request for a peremptory instruction should have been granted.
Reversed, and judgment here for appellant.
Reversed.
