Opinion
No. 33469.
January 2, 1939.
1. CHATTEL MORTGAGES.
One who signs a deed of trust without having it read to him cannot contradict its terms.
2. CHATTEL MORTGAGES.
In replevin to recover possession of live stock and farm implements named in trust deed, valuation of live stock and implements shown in sheriff's return in executing writ of replevin was prima facie correct and was sufficient to support verdict based on items and value of property embraced in trust deed as valued by return.
3. CHATTEL MORTGAGES.
In replevin to recover possession of live stock and farm implements named in trust deed, whether defendant thought he was signing a simple promissory note and notary public who took acknowledgment represented trust deed to be a note and whether defendant executed trust deed direct to his creditor's were for jury.
APPEAL from the circuit court of Pontotoc county; HON. THOS. H. JOHNSTON, Judge.
B.P. Mauldin, of Pontotoc, for appellant.
The case should be reversed because the verdict of the jury is contrary to the law and the evidence.
Salter v. Aviation Salvage Co., 91 So. 340; Allen v. Allen, 168 So. 658.
The court erred in sustaining the objections of the defendant to the admission of certain proof with reference to timber cut off the land of the defendant.
The court erred in not granting to the defendant a peremptory instruction after the plaintiff had rested his case. The court erred in not granting a peremptory instruction before and after the plaintiff was allowed to reopen his case and amend return in the writ of replevin.
The plaintiff was allowed to reopen his case and amend return, the return showed no description or value fixed on the property and was completely lacking until amended.
In replevin where forthcoming bond is given, the plaintiff should prove the value of the property in the trial.
Hinman v. Sabin, 112 So. 871.
Plaintiff had failed to prove the plaintiff's right to the immediate possession.
Johnson v. Sanders, 114 So. 334; Dennis v. Robinson, 61 So. 597.
Wm. H. Inzer and A.M. Mitchell, both of Pontotoc, for appellee.
There was a sharp conflict in the testimony for both plaintiff and defendant and the jury resolved this conflict in favor of the plaintiff and their finding of fact as to same is final.
After the plaintiff had rested, the court suggested that this was an action in replevin, whereupon it was stated by counsel for plaintiff that the original affidavit, writ, return of the officer and bond were made exhibits to the declaration and as such were already before the court, but that if the court thought proper that we would then introduce same separately and apart, which by the court was permitted. And it further appearing that the officer's return was not in due form on motion of plaintiff, the officer was permitted and directed to amend his return to show the true facts in the case. This is always permissible and, if not, certainly is in the discretion of the trial court so that the ends of justice can be met and same would not be held as error unless this discretion was manifestly abused for it is not in this case.
J.E. Brown, trustee in a deed of trust executed by S.D. Morgan to secure an indebtedness to Jim White, sued out a writ of replevin to secure possession of certain livestock and farm implements named in the deed of trust. The defendant, Morgan, gave bond for the forth-coming of the property as described in the deed of trust. On the hearing Morgan contended that when he signed the note and deed of trust he thought he was signing a simple promissory note; that Rex Patterson, who took the acknowledgment to the deed of trust in his capacity as notary public, represented it to be a note; that he did not read the instrument, and that he could barely sign his name.
It appears from the plaintiff's evidence that Rex Patterson arranged to borrow from Jim White the sum of $450 in money; that he had furnished S.D. Morgan certain supplies between the previous fall and the date of the deed of trust, the total sum amounting to $510; that he got White to agree to accept the deed of trust on Morgan in lieu of executing papers himself; that he owed White, and that Morgan owed him — and that the deed of trust was taken for the purpose of securing or paying what he owed to White, Morgan securing to him, Patterson, what he owed to him by giving the deed of trust direct.
Morgan also contends that he owed Patterson money, and that a creditor's receipt was given by Patterson, bearing date of February 12, 1935, prior to the execution of the deed of trust on June 13, 1935; and that Patterson had agreed to accept the amount, evidencing his claims by the creditor's receipt and release. However, there was no direct proof as to the execution of a mortgage by Morgan to the Federal Land Bank, or that the deed to Patterson was embraced in the instrument prior to such execution of the receipt produced in evidence.
There was a judgment in the court below for the trustee, which was based upon the items and value of the property embraced in the deed of trust, as valued by the sheriff's return in executing the writ of replevin, and in the bond taken for the forthcoming of the property, which was introduced in evidence. If Morgan signed the deed of trust without reading it or having it read to him, he is in no position to contradict its terms.
It is argued that there was insufficient evidence of the value of the property separately; but the sheriff's return was introduced in evidence, and his valuation is prima facie correct, and is sufficient to support the verdict. There was conflict between the evidence of Patterson and that of the appellant Morgan and his witnesses, and the further evidence for the trustee.
We think the question presented was one for the jury, and the judgment is affirmed.
Affirmed.