Jamison v. Wilson

119 So. 800, 152 Miss. 382, 1928 Miss. LEXIS 267

• Court: Mississippi Supreme Court
• Decided: November 19, 1928
• Docket: No. 27152.
• Status: Published

Opinions

^* Corpus Juris-Cyc References: Attachment, 6CJ, section 916, p. 402, n. 3; section 966, p. 417, n. 12; section 967, p. 417, n. 14; section 1175, p. 497, n. 97. W.W. Wilson, appellee here, sued out a writ of attachment for certain oxen and camp equipment formerly owned by F.M. McCoy, and James Jamison, appellant here, filed a claimant's affidavit, claiming title to the property through a mortgage and a bill of sale executed to him by McCoy for an alleged consideration of five hundred fifty dollars.

It appears that McCoy was engaged in cutting timber and moving same, and was employed by Wilson to cut timber from the plantation of which Wilson was part owner and the manager. Wilson furnished McCoy certain money and supplies thinking that, under the law, he had a lien on said camp equipment therefor, which equipment McCoy used in the performance of his contract. This contract seemed to be unprofitable to McCoy, and he approached Wilson for permission to move his camp equipment to some other place where he could procure a contract which he thought would be profitable to him and by which he could get some money to pay Wilson, but Wilson refused this permission. Thereafter, and before the suing out of the writ of attachment, Jamison, the appellant, went upon the plantation where the camp equipment was situated for the purpose of moving same, but he was notified by Wilson not to do so, Wilson having made threats that he would shoot him for a little, or some such expression, and thereby Jamison was prevented from moving the property. Jamison then went to the office of the chancery clerk in the county where the property was situated and had his mortgage and bill of sale recorded; said recordation being the day before the suing out of the writ of attachment. McCoy gave bond when the writ was sued out for the forthcoming of the property, and thereafter disappeared from the county and from the litigation. Jamison filed his claimant's issue setting up his claim under his deed of trust and bill of sale. There was a judgment by default against McCoy, and thereupon the claimant's issue came on for trial.

Jamison testified that he let McCoy have five hundred dollars, a part of which he (Jamison) had to borrow, to constitute the consideration of the mortgage; that there was outstanding a mortgage in favor of a third party for a small amount; that McCoy approached him for the purpose of selling the outfit to him subject to this outstanding deed of trust which Jamison was to pay; that McCoy wanted to leave, and represented that he had another job on another plantation where he could make some money; and that he (Jamison) then brought the property from McCoy, paying a fair value therefor.

The only evidence to dispute this testimony is that of Wilson, who testified that when Jamison came to the place for the stuff covered by the suit, the following conversation took place:

"Q. Tell what Mr. Jamison said to you then? A. He said he was sent there by Mr. Thad Ross to get that stuff off, and I asked him why he came at night, and he said he could not tell, he was sent to get the stuff out, and I said, `for a little bit I will fill you full of lead.'

"Q. What did he say about who he was and his occupation? A. He told me he was a bull puncher and had to get the team.

"Q. Did he, at that time, make any claim to you that he had any lien against the property? A. No sir.

"Q. Or that the property belonged to him? A. No sir he said Mr. Ross sent him."

Ross appears to have been the trustee in one of the mortgages given by McCoy.

At the conclusion of the testimony the appellant requested a peremptory instruction, he having also requested a peremptory at the close of Wilson's testimony, which the court refused to grant, and submitted the case to the jury, who found for Wilson.

We do not think the testimony of Wilson above referred to is sufficient to overcome the evidence of claimant and of the validity of his instruments of title, and we think the peremptory should have been granted.

The judgment will therefore be reversed, and judgment here for the appellant.

Reversed, and judgment here for appellant.

Reversed.