Opinion
No. 33311.
October 17, 1938.
REPLEVIN.
Under statute providing for filing of claims by third persons to property seized under a writ of replevin and statute providing for making up and trying issue between the successful party in replevin suit and claimant as to validity of claim, claimants were entitled to a trial of their claims notwithstanding that they claimed through defendant against whom verdict was rendered, and that one claimant claimed through a deed of trust which was not recorded until after writ had been served and that other claimant testified on trial of the issue between plaintiff and defendant in support of defendant's claim (Code 1930, sections 3102, 3103).
APPEAL from circuit court of Jasper county; HON. EDGAR M. LANE, Judge.
O.M. Oates, of Bay Springs, for appellants.
Under Section 3102 of the Code of 1930, appellants filed their claims as third persons, not parties to the replevin suit between appellee, C.S. Sumrall, and Daisy Wade, defendant in the replevin suit. The bank claimed to be entitled to the possession of the property by virtue of a recorded deed of trust executed to it, for value, by Daisy Wade, defendant, who was in possession of the property, and had been for some time prior to the execution of the deed of trust to the Bay Springs Bank. J.A. Wade claims the property by virtue of the purchase of the property by him from Daisy Wade, subject to the bank's deed of trust. It is the contention of appellants, under this section, that claimants could not maintain another replevin suit while this suit was pending between C.S. Sumrall, trustee, and Daisy Wade, but must content themselves to wait until this issue was tried out and final judgment had on the replevin suit, and all that claimants could do was to file their claims.
Ettingham v. Handy, 60 Miss. 334.
After the issue has been tried out in the replevin suit, and final judgment had, it is the contention of appellants that it is mandatory that an issue shall be made up between the successful party in the replevin issue and claimants as required by Section 3103 of Code of 1930.
It is the further contention of appellants that under Section 3103 of Code of 1930, that not only shall an issue be made up between the successful party in the replevin suit, but that it is mandatory that a trial shall be had.
It is the contention of the appellants that for the learned court below to have overruled their motion to have issue joined on the claim filed previous to final judgment, after the trial of the replevin issue, was in violation of the plain mandate of this section which declares that an issue shall be made and trial shall be had, and tantamount to the court deciding the facts and the law that could not be known, under the law, until a trial was given.
The learned court below erred in refusing to consider motion of J.A. Wade, claimant in the court below, to have an issue made up between appellee, C.S. Sumrall, the successful party in the replevin suit, after judgment was had on the replevin issue, this claim subject, however, to the deed of trust to the Bay Springs Bank, executed by defendant in the replevin suit as provided by Section 3102 of Code of 1930.
McFarland McFarland, of Bay Springs, for appellee.
Since the two trustees, C.S. Sumrall as trustee for H.F. Toler, and O.M. Oates, as trustee for the Bay Springs Bank, are both holders of an interest in the property here in question, the said O.M. Oates holding an interest in the two mules here involved in addition to the other cattle, mules, and agricultural products included in his deed of trust, it is submitted by the appellee that they were thereby holders of an individual, joint interest in the two mules. It is the contention of the appellee that the decision of the court in the case of Lewis v. McCracken, 89 Miss. 229, 42 So. 671 (1907), together with the other circumstances of the case, makes this a case wherein the appellant should have asserted his interest or claim to the property in a court of equity, and not be allowed, as was held in the lower court, to assert or intervene in this action of replevin in a court of law.
Insofar as the transcribed record discloses, no date of the filing of the claim of the Bay Springs Bank is given and the appellee is unable to determine from the record when the claim of the Bay Springs Bank was filed. Therefore, it is submitted that the claimant, Bay Springs Bank through its trustee, O.M. Oates, did not have its claim properly before the trial court.
Appellee further submits that in the trial of the cause styled C.S. Sumrall, trustee, plaintiff, v. Daisy Wade, defendant, #895, the sole and only defense of the defendant in that action of replevin was the ownership of the property by a former purchase. This case resulted in a jury verdict and judgment of the court for the plaintiff, thereby adjudicating the ownership, or alleged ownership, of the property by the said Daisy Wade. Since the grantor in the deed of trust to the claimant in this cause is Daisy Wade and since by a verdict of a jury in this cause she has been held to have no ownership thereon, the claim of the Bay Springs Bank is based on a deed of trust executed by one who had no title therein and can convey no title to the said claimant, the Bay Springs Bank through its trustee, O.M. Oates.
It is the contention of the appellee that J.A. Wade in the trial of the case styled C.S. Sumrall, Trustee, v. Daisy Wade, supra, was used as a witness for defendant Daisy Wade, his sister, attempting to substantiate the ownership of the said defendant to this involved property. Therefore, following the reasoning of the learned trial judge, it would be a plain perpetration of fraud to now allow the said J.A. Wade to come in and establish a claim to the property, after he has, by his sworn testimoney, given evidence attempting to establish the ownership of the property in question in his sister, Daisy Wade.
Also, by the verdict of the jury and the judgment of the court in the case of C.S. Sumrall, Trustee v. Daisy Wade, supra, which said verdict and judgment have not been appealed from, the title to the mules were held to be in A.W. Hegwood and any claim of J.A. Wade thereto, could not be upheld after the decision of the jury in that case inasmuch as it was thereby held to be in A.W. Hegwood subject only to the deed of trust in which H.F. Toler was beneficiary and C.S. Sumrall, trustee.
On the 16th day of November, 1936, Hegwood executed a deed of trust on certain personal property to C.S. Sumrall, trustee, to secure the payment of an indebtedness due by Hegwood to Toler. On November 24, 1937, Sumrall instituted an action of replevin for the recovery of the property against Daisy Wade, in whose possession the property then was. The writ of replevin was served on November 26th, and Daisy Wade gave bond for the property. The case was tried in the court of a justice of the peace, where judgment was rendered for Sumrall, from which Daisy Wade appealed to the circuit court. After the case reached that court, an affidavit was filed by Oates, trustee, in a deed of trust from Daisy Wade to Bay Springs Bank, which he claims covers the property here in question. Another affidavit claiming the property was filed by J.A. Wade, the affidavit stating that his claim to the property was subordinate to that of the Bay Springs Bank. The issue between Sumrall and Daisy Wade was tried, resulting in a verdict for Sumrall. Whereupon, both of the claimants requested the court to make up issues between them and Sumrall for the trial of the right to the property as provided by Section 3102, Code of 1930. This, the court declined to do, and the claimants have brought the case to this court. Section 3102, Code of 1930, provides for filing of claims by third persons to property seized under a writ of replevin, and Section 3103 provides that "after the trial of the action of replevin, an issue shall be made up between the successful party and the claimant as to the validity of his claim, and a trial shall be had; and if the issue be found against the claimant, and the property were delivered to him," etc. In support of the refusal of the court below to comply with this section, the appellee says that these claimants were not entitled to a trial of their claims to the property for the reasons: (1) they claim through Daisy Wade, and the jury on the issue between her and the appellee found that she was not entitled to the possession of the property; (2) as to Oates, trustee, the deed of trust to him for the Bay Springs Bank was not recorded until after the writ of replevin had been served and a bond given by Daisy Wade for the property; and (3) as to J.A. Wade, he testified on the trial of the issue between Daisy Wade and the appellee in support of her claim to the possession of the property as against the appellee. All of these reasons are without merit, for a claimant under the statute is entitled to a trial of his claim to the property in a proceeding to which he is a party, and the judgment rendered on the issue between Daisy Wade and the appellee is in no way determinative of the appellant's claim, they not having been parties thereto.
Reversed and remanded.