The clarion. [volume] (Jackson, Miss.) 1883-1888, 1885-05-20
Edward Mayes, for appellan-
II. \. Barr, for appellees.
). DREYFUS EFT AL. J
V. :
W ESLEY CAGE.

" Ecl4EA 0ANtE+
From the Circuit Court of Kinds county
(lst DISTRICT. T. J. Wharton, Judge.
Replern. Rights Of trustee 1mfe' deed
Of hust. Bates a. Snjder distinguished
Construction Of Code 1882.
COOPER, C. j.:
In March, 1891, Cage executed a deed
of trust on his cotton and corn crops,
and on a horse and mule, to secure his
Indebtedness, accrued and prospective,
to Dreyfus & Ascher a firm in Jackson.
In December, 1884, Britton, the trustee,
took possession of the property, where
upon Cage sued out a writ of replevin to
recover possession of the mule snd corn
from the trustee and benefciaries. He
contended that only a small portion of
the debt remained unpaid, and that the
trustee had only the right to take a suffi
cheney of the property to pay this bal
ance. The jury found for the plaintiff
IS to the com and $40 damages, and for
the defendants as to the mule.
The logical result of the proposition
cOntended for by Cage, if 1t be correct,
is that the plaintiff might recover in
this action any of the property taken in
excess of a sufficiency to pay the balance
due. The court erred in ruling in ac-
cOrdance with this view. The power OF
the trustee was conferred by the trust
deed. 1t was, to take all the property
into his possession, if default should be
| made in the payment of the whole or
any part of the debt secured, and to sell
a sufficiency to pay the unpaid debt and
the cost of executing the trust. 1t was
not unlawful for the trustee to do that
which by the deed he was authorized
| and directed to do, and though by such
action on his part the plaintiff has sus-
! tanned damage, it is ddBlnuna dbqQue
i1Ur1a. he grantor should have pro
| vided by his deed for the contingency of
small portion only of the indebtedness
remaining unpaid, by limiting the pow.
ers OF the trustee, or, failing in that, he
should nave avoided the consequences
| by paying or rendering to the creditor
whatever sum remained due on the Sc
cured debt. He failed to do as he agreed
to do; the trustee did as he was author.
lied and required to do, and nothing
more. 1t is difficult to perceive any
legal principle upon which right of
action can accrue to him who has failed
in the performance of duty as against
one who has not.
But it is contended that under Code
/ { 1882, it was proper to enter up a iudg-
ment for so much of the property as
was unnecessarily sold for the payment
OF the debt: and to sustain this proDo-
sition the case of Bdtes o. .Snideg. 90
Miss, is cited. That case is applicable
only where a party has rightly recovered
a Judgment for the possession of pro-
peTty, but has only limited interest in
| 1T for the security of debt less than its
value. 1t cannot be invoked to create a
| right of recovery where none exists.
1t was not intended by Code : 1872.
to abrogate all distinctions as to forms
of actions, but only TO provide that
proper judgments should be rendered
in courts of law on issues properly de
| terminable in the form of action tried.
lnextricable confusion would result
from an attempt to SO apply it as to con-
vert actions of replevin into actions of
| assumpit or trespass dc bonis dsportqtis.
some features of each of which actions
appear IN this case, as tried by the court
below. The single question to be tried
I'D this case, is,-whether, at the time Of
the institution Of the suit, the plaintiff
| was entitled to the possession of the
/ property. lie was not so entitled if at
that time any part of the debt secured
was unpaid. Under the instructions of
the court, the jury, in each of its YER
diets, attempted to settle the supposed
rights of both parties by finding a part
of the issue for the plaintiff and part
| Tor the defendants. In neither verdict
is there a finding that the plaintiff or
the defendant is entitled to all the pro-
| perty sued for. We cannot, therefore.
render judgment for the defendant on
either verdict. Regcrsed
j. A. Brown for appellant.
L. Brafne for annallee