Black v. Robinson

61 Miss. 54

• Court: Mississippi Supreme Court
• Decided: October 15, 1883
• Status: Published

Opinion

Cooper, J.,

delivered the opinion of the court.

As to all the world except the trustee in the deed of trust, Warner was the holder of the legal title to the property, and might sell it to third persons, subject to the same incumbrance as that under which he held it. By the gift or sale of the cotton to his wife, he transferred whatever right he had to her, and by her sale she transferred the right thus acquired to Robinson. The appellants had no right to the possession of the cotton. The extent of their right was to have the trustee take possession of the mortgaged property, and sell it according to the provisions of the deed of trust, and to have an appropriation of the proceeds to the satisfaction of the debt due by Warner to them. Warner, having parted with his interest in the cotton sued for, could not, by thereafter consenting to a sale of the cotton by the appellants, or by selling it to them at an agreed price, bind C. L. Robinson, who then held the cotton. Robinson’s right having intervened, it could only be affected by a sale as provided in the deed of trust by which it was incumbered when he bought.

In the case of Hunt v. Shackleford, 55 Miss. 94, it was decided that although the oestuis que trust had no legal title to property conveyed to a trustee to secure a debt due to them, yet as they were entitled to the proceeds of the property when sold, they might, in an action at law brought against them by one who had converted the mortgaged property, set off its value against the plaintiff’s demand. The case now before us differs from that just noted in this, that it is here shown that the appellants had ample security for their debt upon other personal property conveyed by the deed of trust, and the plaintiff Robinson in reply to the equitable right propounded by the defendants to appropriate the proceeds of the ootton to their debt, invokes that rule of equity which requires the mortgagee to proceed against the mortgaged property remaining in the hands of the mortgagor, before subjecting that with which the mortgagor has parted. It is shown by the evidence that the mortgaged property, exclusive of that which is the subject of this suit, is more than sufficient to pay the whole of the secured debt, and there is no intimation leading to the conclusion that the cestuis que trust would be delayed or inconvenienced by resorting to it for the payment of their claim. This being the case, we think the defendants cannot successfully interpose their equitable right of appropriating the proceeds of the mortgaged property to their debt as a bar to the plaintiff’s right of recovery on his legal title to the property, for their equity is met by one equally strong for the plaintiff. Lee v. Buck, 13 S. C. 178.

The court erred in admitting in evidence the declarations made by Warner and his wife to the effect that she had leased land and cultivated a crop thereon, and in giving the fourth instruction for the plaintiff predicated on such declarations. These statements were hearsay evidence, and for this reason should have been excluded. The same objection lies to the testimony going to show what declarations were made by the agents and servants of the express company to the plaintiff touching the shipment of the cotton. The defendants were not present at the time when these conversations occurred and are not in any manner to be affected by them.

The second instruction for the plaintiff is erroneous. In cases of conversion where there is neither fraud, oppression, or willful wrong, the measure of damages is the value of the property at the time of the conversion and interest thereon. It was error to add to the instruction the further words, “ and any other actual damages proved.” The third instruction for the plaintiff should not have been given. The case proceeds rather upon the equitable than the legal rights of the respective parties, and it may be doubted whether under any conceivable circumstances punitory damages can be awarded in such cases. Confining our opinion, however, to the case now before us, it is sufficient to say that this is not a proper case for such damages.

Judgment reversed.