James v. Taylor

Judgment affirmed. A ft. fa. in favor of Taylor against Curry, issued upon a judgment rendered in March, 1890, was levied upon a mare and other personalty, and James filed a claim. The case was tried on appeal before a jury in a justice’s court. The jury found the mare subject, and the other property not subject; whereupon the magistrate entered up judgment for the full amount of cost against the claimant, who by certiorari made allegations of error hereafter mentioned. The certiorari was overruled. Claimant testified, that he bought a mule from Whit-taker for defendant, and gave his note for it, defendant being also on the note. Whittaker retained title until the mule was paid for. Defendant paid some of the money to Whittaker for the mule. Defendant lived on claimant’s lands for a number of years, and used the mule on the place. The mule always belonged to claimant after it was gotten of Whittaker, until defendant traded it for another mule with one Wingate, claimant giving defendant leave to so trade it provided he would pay the difference in value to Whittaker, which was done, or the most of it. Defendant, with claimant’s consent, traded the last mentioned mule to Fleming for a horse or mare, and swapped around, and then traded with Maddox for the mare levied on, getting some boot, and paid some of the balance on the Whittaker note, leaving some $27.50 still due on it, which claimant paid Whittaker in the fall of 1889 and took up the note. [277] The animals so gotten in exchange were claimant’s property and so regarded by defendant, never belonged to defendant but were to be his when fully paid for, and he never fully paid for them, and made none of the trades referred to without the consent of claimant. Defendant swapped the mule gotteji of "Wingate to Sawyer for a horse and brought it home, and claimant made, him return it and get the mule back. Curry is dead. Claimant was misled in suing out an attachment, not knowing how to get/ at his rights, and being advised to sue it out; but was afterwards advised he was proceeding wrong, and then withdrew it and filed the claim. Sawyer testified that in 1887 he made the swap with defendant, as testified by claimant, when claimant repudiated it, and he gave the mule back to defendant. Claimant proposed to prove by Sawyer, that some time in 1890 he proposed to trade with defendant for the mare now levied upon, when defendant said he could not trade it because it belonged to claimant. This evidence was repelled, on the ground that it appeared that this statement was made after plaintiff’s judgment against defendant had been entered; and similar testimony of one Swords was repelled for the same reason. Claimant also offered interrogatories of 'his wife, to the effect that she heard defendant say many times that the mare belonged to claimant, one time being when plaintiff and defendant had a trial, defendant saying plaintiff could get nothing, for the property belonged to claimant; that when defendant made a mortgage to claimant, claimant telling him he was uneasy about the money defendant.owed him, defendant said the property belonged to claimant any way, and it was unnecessary to give any mortgage; and that it was not true that claimant only claimed by the mortgage, but he claimed by agreement between him and defendant. Error is assigned upon these rulings. J. N. Glenn, for plaintiff in error. J. R. Irwin, by brief, contra. There was evidence for plaintiff, by various witnesses, that defendant was in possession of the mare levied upon, and said it was his property; that he offered to trade the mare to one Cawthorne, claiming it as his own; that when defendant left, claimant took out an attachment against defendant and placed it in the hands of a witness, pointing out to him this mare to levy on as defendant’s property; that "Wingate, Fleming and Maddox, when they traded with defendant, paid him boot; that Wingate spoke to claimant about trading for the mule, and claimant said it was all right; that Whittaker would not let defendant have the mule unless claimant would stand for him, and claimant and defendant signed the note, Whittaker retaining title; and that defendant traded the mule to Wingate before it was paid for, getting $10 boot, which he paid Whittaker on the mule note, defendant and claimant paying Whittaker for the mule. It was alleged that the jury found contrary to law, evidence, etc.; and that the magistrate erred in entering up all of the costs against claimant, part of the property levied upon having been found not subject.