Trice v. Walker
71 Miss. 968
Miss.
1894
Check Treatment
Campbell, C. J.,

delivered the opinion of the court.

The sixth and seventh instructions for the plaintiff are erroneous, and should not have been given. The sixth is wrong, because, if Trice had an unsatisfied deed of trust on the mules (and such deed was produced in evidence, and condition was broken), they were not properly seized under the execution.

The seventh is wrong, as calculated to mislead by conveying the idea that if what Trice had testified as to Bates’ having surrendered the mules to him at an agreed price, was true, still, if no money was paid for them and no credit given for them, the title of. the mules did not pass to Trice.' If the transaction was as Trice testified, the non-payment of money, or the failure to enter the proper credit for the price agreed on, did not prevent the title of the mules from vest*974ing in Trice. Failure to make any entry of credit was evidential only, and not conclusive. Whether the amendment allowed, and made by Trice in his affidavit during the trial, was properly permitted is immaterial. It was nnnecessaiy, and seems to have been very hurtful to him who made it, for it enabled his adversary to discredit him before the jury, probably. The issue was not changed by the new affidavit. It was whether the articles seized were liable to the execution, not whether Trice had title or a paramount lien which entitled him to hold them, except as that bore on the question, were the articles leviable? If Trice had no title or lien, and the plaintiff failed to show the liability of the property to his execution, the issue would be found for the claimant.

In this case, as presented by the record, the property was liable to the execution unless title was in Trice, or he had a lien paramount to that of the judgment creditor, which prevented the seizure of the property. But an amended affidavit was not necessary to enable Trice to avail of a superior lien, if he had one on the agricultural products, coupled with the right of possession for the satisfaction of the lien. Wolfe v. Crawford, 54 Miss., 514.

We do not say that Trice had such a lien, for the evidence as to his relation to the land on which they were produced, raises an interesting series of questions not necessary to be-discussed now, and left for future consideration. But we do say that, under Butler v. Lee, 54 Miss., 476; Wolfe v. Crawford, 54 Ib., 514; and Helm v. Gray, 59 Ib., 54, there was no necessity for the amendment made, and that the rights of the parties could be worked out without any amendment of the affidavit; and, for that reason, it is immaterial whether §4425, code 1892, applies or not. That section introduces into §1774, code 1880, the clause, “or to have a lien on,’ so as to expressly authorize one who dpes not own, but has a lien on, property to interpose a claim. As stated, this right existed before, and the provision was perhaps unnecessary. In view of the fact that no change was made in the law, as *975to this, further than the insertion of the clause mentioned, it is suggested that the sole purpose was to declare the law as it was settled before. It may have an effect beyond this which is not now apparent. It certainly gives the right 'to a mere lienor to interpose a claim, regardless of possession, or the right of possession, and, if necessary, the courts must supply the omission to make any change in the statute to-correspond to that made, if any.

Reversed, and remanded for a new trial.