McGill v. Howard

1. Replevin. Lien of third party. Defendant cannot assert. A defendant in replevin cannot assert the right of a third person to a lien on the property as a bar to the plaintiff’s right to the possession. 2. Same. Landlord’s lien. The fact that the defendant owes his landlord for supplies cannot defeat a recovery by the plaintiff, who has a right of possession as against the defendant. The plaintiff would take the property subject to landlord’s lien.

Appeal from the Circuit Court of Wilkinson County. Hon. J. B. Chrisman, Judge. E. A. McGill, the appellant, brought an action of replevin against Howard, appellee, for two bales of cotton. The appellant claimed under a chattel mortgage on the cotton for supplies. Howard was the tenant of one Feltus, and it was proved on the trial that he owed his landlord for rent and supplies. The landlord did not assert his claim. The court gave the following instruction for the, defendant: “If the jury believe from the evidence that the cotton seized was raised on land rented by defendant from Eeltus, and that Eeltus had furnished defendant with supplies, any part of which was owing at the time of the seizure, then by law Feltus has a lien on the cotton so seized for the payment of such supplies prior to the lien given in plaintiff’s deed of trust, and plaintiff is not entitled to the possession of either bale of cotton and they should find for the defendant.” The plaintiff excepted to the giving of this instruction and assigns it for error. Judgment ivas for the defendant. Landlords are abundantly.protected under the Act of 1876, but it can hardly be successfully contended that this favored class were made by that act the special wards of the courts, and that it is the duty of circuit judges to enforce rights which they do not choose to claim for themselves. This is just what was done in the ease at bar. The landlord makes no claim to the disputed property, but upon a mere suggestion of one of the defendants that he possibly. owed his landlord something for supplies, the jury are instructed that such a suggestion amounts to a paramount claim. The case of Strauss v. Bailey, 58 Miss. 131, is relied on by counsel for defendant in support of positions taken by the defense. The plaintiff must have the right to the immediate and exclusive possession of the property in himself, authorizing a recovery and the right or claim of a third party may be shown by the defendant. Wills on Replevin, §§ 94 and 689; Strauss v. Bailey, 58 Miss. 131.