Coon v. Patterson

70 So. 885, 110 Miss. 703

• Court: Mississippi Supreme Court
• Decided: March 15, 1916
• Status: Published

Opinion

Cook, J.,

delivered tbe opinion of tbe court.

This appeal is from a judgment entered by the circuit-court in a replevin suit instituted by J. B. Patterson, trustee, in a certain deed of trust, to recover possession of certain live stock described in the deed of trust, and is a companion case to R. C. Coon v. Robinson Mercantile Co., 70 So. 884. The indebtedness secured by the deed of trust is thus described by the instrument itself,- viz.:

“Whereas, said party of the first part [R. C. Coon] expects said Bobinson Mercantile Company to advance him ninety dollars supplies and merchandise during the year 1913, and at such prices as may he agreed upon at the time of delivery, or the usual customary credit prices in the town of Centerville, Mississippi . . . and any further amounts that may he advanced as aforesaid and not mentioned herein.”

The deed of trust conveyed to the trustee agricultural and horticultural products to he raised on land belonging to H. L. Coon. The advances made by the Eobinson Mercantile Company were paid, but it appears that the Eobinson Mercantile Company afterwárds.paid'to H. L. Coon, the landlord of E. C. Coon, the rent on the land on which the agricultural and horticultural products were grown, and transferred and assigned the deed of trust of H. L. Coon, and this action of replevin was begun by the trustee in the deed of trust. Why the deed of trust was transferred to the landlord is not entirely clear, unless it was for the purpose of affording to the landlord a means by which he could collect that part of his rent which Eobinson Mercantile Company had not paid him. It appears that the landlord bad entered into an agreement with Eobinson Mercantile Company to waive a part of the rent, and this suit in replevin was brought to secure the payment of the unpaid balance. It may be that we have not guessed the theory of appellee; but, whatever may be his theory, we are clearly of opinion that the deed of trust does not cover the rent, and, the record disclosing that E. C. Coon, appellant, had paid all of the debt secured by the deed of trust, that the trustee was not entitled to the possession of the live stock replevied. The court below erred in awarding the possession of the property to appellee.

Eeversed, and judgment here for the value of the property in favor of appellant, with six per cent, interest thereon from the date of the levy of the writ of replevin.

Reversed and judgment here.

OPINION ON SUGGESTION OE ERROR.

A re-examination of the record of this appeal leads to the conclusion that we did not understand the facts presented to the trial court. In our former opinion reversing the trial court, we said:

“Why the deed of trust was transferred to the landlord is not entirely clear, unless it was for the purpose of affording the landlord a means by which he could collect that part of his rent which Robinson Mercantile Company had not paid. ’ ’

We see now that this was a misconception of the facts. The deed of trust, according to appellee’s evidence, was to secure the advancements made by the Robinson Mercantile Company. ’ This account was not paid in full, and the balance due was, by agreement, charged to the landlord and the security transferred to him. Evidently, we confused the waiver of a part of the rent with the payment by the landlord of the balance of the account secured by the deed of trust.

Former judgment reversing this case is set aside, and the judgment of the trial court is affirmed.

Affirmed.