Williams v. Devine

52 Miss. 139

• Court: Mississippi Supreme Court
• Decided: April 15, 1876
• Status: Published

Opinion

Ciialmeus, J.,

delivered the opinion of the court.

'.The contest is in replevin, as to the right of possession to personal property which had been conveyed by the owner, by - sevelal separate trust deeds, to different trustees.

The elder trust deed must prevail, for, although it was last recorded, it is admitted that the grantees in the junior convey-anees had foil notice of the senior. The senior was withheld from record for the purpose of obtaining the signature of the grantor’s wife, but the property involved belonged to the husband, and as to him the execution was complete.

The ruling of the court below was in accordance with this view, and therefore correct; but the judgment, or rather judgments — for there were two of them- — were so irregular that they cannot be maintained. There were two junior trust deeds, to different beneficiaries, and with different trustees. Each of these trustees took possession of a portion of the crop in the fall. Thereupon the trustee in the senior and superior trust deed sued out a writ of replevin against them jointly, making but one affidavit, in which he averred that the property was in the possession of Williams and Cotton, the trustees in the junior incumbrances. A single writ was issued and levied on all the property in the possession of both defendants. Each defendant, however, gave a separate replevin bond, each replevying the property found in his possession.

The plaintiff, following his own affidavit, filed but one declaration, which was against Williams and Cotton jointly, and claimed of them all the property in litigation as if the same, without division, was in the hands of both jointly. The defendants jointly plead the general issue. The case was submitted to the court without the interposition of a jury.

The court made two separate findings, both in favor .of the plaintiff, and rendered two separate judgments against both defendants for different amounts.

The result is that there is one judgment for a specified list of personal property, or its alternate value, which is fixed at $124, rendered against both defendants, and this is immediately followed by another judgment for certain other specified property, or for $212, its alternate value, against the same two defendants.

These double judgments are rendered upon but one declaration, with but one plea.

It is manifest that they cannot be maintained. Counsel insist that it is nothing more than a misjoinder of parties, and cannot be objected to after verdict, under the statute of jeo-fails, § 622 of Code.

This might have been so if a single judgment had been pronounced and a single verdict rendered, but there were two verdicts and two judgments for different amounts, upon one declaration.

There was a joinder as to the pleadings and a severance as to the verdict and judgment. There should have been either two declarations or but one judgment.

The verdicts and judgments are reversed and set aside, and the cause remanded with leave to amend pleadings if desired.