Spears v. Robinson

71 Miss. 774 | Miss. | 1894

Woods, J.,

delivered the opinion of the court.

The deed of trust was not void for uncertainty in the deseription of the property conveyed, and should not have been excluded from the jury. There is no uncertainty in the description of the property conveyed; the uncertainty, if there be any (as to which we express no opinion), is as to the portion of the cotton sought to be excepted from the conveyance of the “ entire crop ” of the grantor. McAllister v. Honea, ante, 256.

The contract in the alternative, for sale or rent, was, it is true, a verbal one; but this suit originated in the attachment for rent, which was only an effort to enforce appellee’s rights, according to his theory, under the verbal contract of rent? and there was no error in allowing evidence to show fully what the real agreement between appellee and the Reeveses was. The subsequent writings said by the appellee to have been executed by them, were, on the part of the Reeveses, an agreement to pay rent, and, on appellee’s part, a modification of the original contract, by which Robinson stipulated to receive six instead of eight bales as first installment of the purchase-price under the sale contract, in consideration of the Reeveses paying interest on the value of the two bales which they might not be able to deliver in pursuance of the contract to buy. The second and third assignments of error are, therefore, not well taken.

The second instruction of defendant was erroneous, and we are at a loss to conjecture on what ground it was thought proper. The counsel for defendant below make no comment on this point, and thus seem to decline to support this ruling of the court below.

The fourth charge given for defendant was not error. Section 2581, code of 1892, introduces no new rule as to the burden of proof in the cases therein spoken of. The section is merely declaratory of what was already the law in this state.

The second and third instructions asked by plaintiff below were properly refused. Though the specially deputized constable’s dealing with the attached property was irregular, and though the bond which he took from the claimant was also irregular, yet this irregular bond has had the effect in the proceedings which a bond properly given would have had, and it must be held binding on the parties executing it. It would be a scandalous reproach upon the administration of justice if the appellant could execute an irregular bond, under which he had the property delivered to him, and, after obtaining possession of it by virtue of such bond, convert it to his own use, and then be heard to assert successfully that he was not to be held liable on his bond because of some irregularity in it. Forbes v. Navra, 63 Miss., 1; State v. Depeder, 65 Ib., 26.

Reversed and remanded.