Conn v. S. Bernheimer & Son

67 Miss. 498

• Court: Mississippi Supreme Court
• Decided: October 15, 1889
• Status: Published

Opinion

Cooper, J.,

delivered the opinion of the court.

The fact that appellees resorted to an action of replevin to recover the mortgaged cotton, in a state of case in which they were not entitled to that remedy, does not preclude them from asserting their incumbrance against it in this proceeding. They neither gained nor lost any right by the unauthorized suit, nor by converting the cotton into money while that suit was pending. They might have paid the value of the cotton to the officer from whose possession they had taken it, and then have interposed their claim to the fund in court which would have stood as the representative of the cotton. Clinton v. Clarke, 61 Miss. 337.

But the existence of this right does not prevent a resort to equity, where the rights of all the parties may be settled once for all and complete justice done. Section 2633 of the code prohibits only the action of replevin to one whose property is seized under an execution against another. Its sole purpose is to prevent the piling up of suits for the possession of property under local claims, and in lieu of such suits it provides the simple and cheap remedy of a claimant’s issue. The right of one having a claim cognizable in a court of chancery to proceed in that court is not at all restricted by the statute.

Nothing that was done in the suit at law operates as a bar to this action to foreclose the mortgage. In truth the present complainants as plaintiffs in the law courts found themselves in a situation in which they could not introduce any evidence in support of their right to the property, because they had no standing in that court.

Under such circumstances, the judgment against them for a return of the property has none of the elements of an adjudication of their rights.

The decree is affirmed.