Opinion
No. 29540.
November 23, 1931.
REPLEVIN. Where plaintiff in replevin obtained possession, unsuccessful defendant cannot recover for depreciation or use between time of writ and bond, and trial ( Code 1930, section 3089).
In a replevin suit where the plaintiff gives bond and takes possession of the property, and the judgment of the court is that he retain it and that the defendant pay the costs, the defendant cannot recover for depreciation in the property or for use thereof between the time of suing out the writ and giving bond, and the time of the trial.
APPEAL from circuit court of Wilkinson county; HON. R.L. CORBAN, Judge.
D.C. Bramlette, of Woodville, for appellant.
Where a trustee under a deed of trust to secure the purchase price of cattle brought an action of replevin for the cattle covered by the trust deed and there was a conflict in the evidence as to whether the debt secured by the trust deed had been paid, the court should not have given a peremptory instruction for the plaintiff.
Snowden v. Collins, 112 Miss. 801.
Payment extinguishes mortgages or deeds of trust.
Munn v. Potter, 111 Miss. 180.
The supreme court of Mississippi has held that a reasonable time within which a trustee or mortgagee can hold personal property until making the sale under the deed of trust or chattel mortgage is ten days and a like period for advertising the sale.
Gray v. Helm, 60 Miss. 131.
Payment is an issue of fact and payment may be made by the creditor wrongfully holding the debtor's property and using the same as his own or payment may be made by the creditor wrongfully destroying the value of the debtor's property as appellant testified appellee did in this case.
Mortgagee of personal property, selling it at private sale under power is accountable for its reasonable value, regardless of the price he actually receives.
Marsh v. Elba Bank Trust Co., 93 So. (Ala.) 604; Zadek v. Burnett, 176 Ala. 88, 57 So. 450.
Under the alleged facts, if true, the court in this cause can ascertain a fair and reasonable valuation of the personal property, and on the accounting and redemption charge the mortgagee, who sold it at private sale under the power of sale in the mortgage, with the reasonable value of the personal property sold, regardless of the price actually received by the bank for it.
Harmon v. Dothan Bank, 186 Ala. 360, 64 So. 621; Zadek v. Burnett, 176 Ala. 88, 57 So. 447; Johnson v. Selden, 140 Ala. 421, 37 So. 249, 103 Am. St. Rep. 49; McDougal v. Alston, 66 So. 683.
Where the mortgagee takes possession and sells, he is accountable for the reasonable value of the property and is liable in damages for any injury caused by wrongful seizure and sale.
11 Corpus Juris 716, 717.
The proper measure of actual damages in an action for the premature foreclosure of a chattel mortgage is the loss of the use of the property during the time it was out of the possession of the mortgagor.
Tanton v. Boom Gaarden, 111 Ill. App. 37; McDonald v. Schantz, 44 Okla. 648, 650, 146 P. 36, 37.
Section 3086, Code of 1930, provides that the valuation of property by the officer in his return shall in all cases be prima-facie evidence only of the value of the property.
Engle Laub, of Natchez, for appellant.
Where property replevied under deed of trust given to secure a debt was of a value greater than the amount of the debt, the jury should under Code 1906, section 4233, declaring that, if plaintiff recover, and defendant has given bond for the property, judgment shall be against defendant and the sureties on his bond that they restore the property to plaintiff or pay him the value thereof or his interest, if a limited one, as assessed by the jury, be instructed as to the trustee's interest, and the judgment should be for the restoration of the property to the trustee or payment of his limited interest.
Hill v. Petty, 71 So. 910, 111 Miss. 665.
While Hill v. Petty is a case in which the defendant gave bond, the principles there enunciated are on all fours with the proposition here submitted by appellant.
Kennedy Geisenberger and Whittington Brown, all of Natchez, for appellee.
An action in replevin is statutory. Upon the suing out of the writ of replevin, if the defendant failed to give bond under the statute the plaintiff may give bond for the forthcoming of the property.
Under section 3098 of the Mississippi Code of 1930 in cases where the plaintiff gives bond for the forthcoming of the property, as in this case, in event that the plaintiff prevails in the replevin action, the only judgment that can be rendered by the court is that the plaintiff do retain the property and recover costs of the defendant and recover damages for the wrongful detention of the property by the defendant if such be shown.
In cases where the plaintiff prevails in replevin and where the plaintiff has given bond for the property, the value of the property need not be arrived at by the jury.
During the pendency of the replevin suit, the property is actually or constructively in the custody of the law.
Miller v. White, 14 Fla. 435.
Replevin lies for the recovery of personal property wrongfully taken or withheld or detained, and damages for the wrong.
Burrage v. Nelson, 48 Miss. 237.
Replevin involves nothing but legal rights, and if equities are to be settled, another form of action must be resorted to.
Myer v. Moseley, 64 Miss. 610.
The only judgments for the recovery of money that can be rendered in an action of replevin are for the value of the property involved, or the interest therein of the party recovering for damages for the wrongful taking or detention of the property and for damages for the wrongful suing out of the writ.
Porter Hardware Company v. Peacock, 91 So. 856.
There is only one question presented for the decision of this court, and that is, whether or not the appellee was entitled to the possession of the property covered by the deed in trust at the time he filed his affidavit and declaration in replevin and when the writ and bond were issued.
If the indebtedness had not been paid, or the notes representing it had not been extended, so as to be undue, at the time the writ of replevin was issued, then all questions, as to damage alleged to have been sustained by appellant by reason of loss in value and deterioration of the property while it was in appellant's hands, fall outside of the scope of the issues involved.
The plaintiff having given bond in conformity with section 3098, Code 1930, the judgment of the lower court was proper and all of the evidence concerning the value of the property at the time of its seizure and at the time of its sale under the deed in trust, has no bearing upon the questions to be decided by this court. Replevin being a purely possessory action, the lower court had only to decide whether or not the appellee was entitled to possession of the property involved and was in nowise concerned with his dealings with it after once having it in his possession.
Argued orally by S.B. Laub and D.C. Bramlette, for appellant, and by Luther Whittington and W.A. Geisenberger, for appellee.
J.M. Jones sued out a writ of replevin for certain property alleged to be wrongfully detained from him by the appellant, Griffin. The property replevied was described in a contract by which Jones was authorized, when certain notes therein described became past due and unpaid, to take in possession and sell, either in person or by agent, after giving notice in writing for one week for the payment of the said notes. When the property was seized in the replevin suit the defendant, Griffin, failed to give bond for the forthcoming of the property, and the plaintiff, Jones, gave the bond and took possession of the property.
The replevin suit was defended but was not brought to trial for approximately two years after the suit was begun and the seizure made. In the meantime Griffin had filed suit against Jones for a breach of contract in which the property replevied was used in hauling logs under the said contract, and had recovered a judgment of fourteen thousand dollars for the breach of the contract. In the declaration in this other suit plaintiff set forth that Jones had damaged him in the sum of fifty-three thousand dollars, but was entitled to a credit against such judgment or claim of seventeen thousand dollars, which the plaintiff, Griffin, in that suit owed Jones on account of advances made on the contract. It was claimed in this other suit that Jones had furnished Griffin something in excess of forty-four thousand dollars, and that Griffin had delivered logs, under the contract, to the value of some twenty-seven thousand dollars, and that the property replevied in the present replevin suit was used by Griffin in hauling said logs under said contract. The notes involved in the present replevin suit, which the property was conveyed to secure, amounted to something over six thousand dollars, and when the property was replevied by plaintiff, Jones, it was valued by the sheriff at six thousand dollars, or the amount of the notes due by Griffin to Jones.
After the judgment in the suit for breach of contract was obtained, an injunction suit was brought in the chancery court to restrain execution on the judgment and to have the debt evidenced by the notes deducted from the amount of the judgment. In that suit the attorneys who represented Griffin in the circuit court in the breach of contract suit intervened and filed a claim for some seven thousand dollars, being a contingent fee of fifty per cent which they were entitled to for prosecuting the suit under their contract with Griffin. It seems that the chancery court sustained the claim of the attorneys, which left an interest in Griffin of some seven thousand dollars in the judgment in that suit.
Griffin contends that he directed that the proceeds from the logs be applied in satisfaction of notes, and by this means the notes were paid. This contention is not sustained, as at all times the amount furnished him to carry on the contract exceeded the value of the logs delivered under the contract.
In the present replevin suit it was contended that as the seizure under the writ of replevin was before the rendition of the judgment in the replevin suit, the plaintiff in replevin had used the teams, wagons, etc., embraced in the replevin suit and had damaged them and reduced the value thereof to a considerable extent. In fact, when the property was sold, under the mortgage, to Jones it only brought one thousand dollars. A contention is made on appeal that this deterioration in value should have been offset against the plaintiff's demand on the notes. The judgment of the circuit court seems to be in accordance with the statute upon cases where the plaintiff in replevin gives bond in case the plaintiff recovers judgment to retain the property. By section 3089 of the Code of 1930 it is provided that if the defendant shall not give bond within the time required by the section the sheriff shall deliver the property to the plaintiff, upon the plaintiff entering into bond to the defendant, with sufficient sureties, in double the value of the property, to be ascertained by the valuation of the officer, etc. This section provides further: "and in the event the judgment of the court shall be that the plaintiff restore the possession of the property to the defendant and the plaintiff shall deliver up said property in obedience to the judgment of the court, the plaintiff and the sureties on his replevin bond, regardless of what statute the bond is executed under, shall be liable to the defendant for any damage to, or depreciation in the value of, such property from the date of the surrender of said property to the plaintiff and the execution of his replevin bond to the date of its surrender by the plaintiff in obedience to the judgment of the court, in addition to any other damage which the defendant may sustain by reason of the delivery of said property to the plaintiff, or his retention thereof, in virtue of said bond, and the defendant may recover such damages in the replevin suit, or may institute a separate action therefor on the plaintiff's replevin bond."
This quoted provision of the statute considers the question where the judgment is in favor of the defendant. In such case the defendant may recover the amount of the depreciation in the replevin suit, but it does not apply where the plaintiff, since the replevin suit, retains the property thereunder and has judgment that he retain it. In such case the judgment is, as shown in the record here, that the plaintiff retain the property and that the defendant pay the costs. Where the property and the right of possession thereof is for the purpose of sale to satisfy a lien, the plaintiff, on recovering the judgment, proceeds with the sale. If the property has been damaged by the plaintiff while in his possession under such bond by being used by the plaintiff, the right of the defendant to recover therefor is in a separate suit. It is not involved in a replevin suit in such case, and the judgment in the replevin suit is not res judicata as against that claim in a suit on the bond or in a suit against the plaintiff personally.
If the suit in the chancery court hereinbefore referred to has not been terminated, the equity of the parties can be adjusted therein, and the defendant may recover or have awarded to him in that proceeding the value of the deterioration caused by the use of the plaintiff.
We are of the opinion that the peremptory instruction was proper, and that the judgment entered was a proper judgment under the law. The judgment is therefore affirmed.
Affirmed.