Worrell v. Vickers

The opinion of the court was delivered by Manning, C. J. The plaintiff sues upon-three notes, executed for the lease of the “Thistle Bidge” plantation for 1875, and obtained a writ of provisional seizure, under which twenty bales of cotton were seized. No appearance is made by the defendant. Bobert Murdock intervenes, claiming eighteen of the bales under a sale from B. W. McBride. There was judgment, in accordance with a verdict of a jury, in favor of plaintiff against defendant for the sum demanded, being the amount of the notes with interest, subject to admitted credits, with a recognition of his privilege and right of pledge as lessor upon the property provisionally seized, reserving the rights of the Intervenor, and a judgment in favor of the Intervenor for the eighteen bales. When the sheriff approached the house on the Thistle Bidge Plantation, with writ in hand, he met a wagon laden with cotton, and turned.it back. The driver of the wagon says he was still on the Thistle Bidgo place when the sheriff stopped him. The officer proceeded to the spot where the other bales were, and there found another Murdock, who announced himself to be the agent of the Intervenor. In a few minutes the loaded wagon arrived. It was now after sundown. Murdock asked the driver why he had come back, and the sheriff answered, by his order. The sheriff announced his purpose to seize all the cotton, mules, and implements. Murdock exhibited a bill of sale from McBride to the Intervenor of cotton, mules, and all movables on the place. • The officer, a colored deputy, persisted in his purpose to seize. Murdock [203] told him. it was not legal to make a seizure after sundown. Nothing was done. The sheriff remained on the plantation during the night. The next morning the place was bare. The cotton and mules and wagons had disappeared. McBride naively says, the mules were kept out of the way. Eighteen bales of cotton were found by the sheriff on the adjoining land. The drivers testify that they hauled these bales from Thistle Ridge ón that night, and that the cotton was raised on that place. It was the same that the sheriff found there. ■ The hauling was by direction of the Murdock who was acting as agent of the Intervenor. According to his theory, the sheriff could seize only in the sunlight, but it was lawful to remove the objects of seizure even during the darkness of night. The Intervenor claims these eighteen bales, under a sale from McBride of same day that plaintiff’s petition was filed. McBride says he gave Murdock a bill of sale. -None has been produced. The defendant Tickers is the son-in-law of McBride, and the latter says that he worked the plantation with his sondn-law, furnished the team and implements, and was jointly interested in the lease. He was indebted to Murdock about twenty-five hundred dollars he thinks. The consideration of the sale was the payment of this indebtedness. Both of them admit that the property thus sold was worth twenty-seven hundred and eighty-two 56-100 dollars. Murdock testifies that McBride owed him only seventeen hundred and fifteen 94-100 dollars. No money was paid at this sale, or afterwards. McBride thus sold to his creditor, in payment of his debt, property worth a thousand dollars more than the amount of the debt. Along with the statistics we have the information from McBride himself, that “ this sale was bona fide, and not made with the intent to defraud any body. ” There can be no doubt in our minds of the intent and object of these parties. The plaintiff in answering the petition of intervention expressly charges collusion between the intervenor and McBride, for the purpose of depriving him of his recourse against the crop produced on Thistle Ridge, and the property used in and for its production. A sale, or a elation en paiement, by a debtor to a creditor of property of value largely in excess of the debt due from the one to the other, made under an impending seizure by another creditor of same property, lacks the element of bona fides on its face. Without explanation, the reality of such sale, or giving in payment, is not credible, and under the charge of fraud or simulation, all the facts and surrounding circumstances attending the transaction are properly inquired into. Montgomery v. Chaney 13 Annual 207. When these circumstances confirm the impression created by the suspicious garb in which the transaction is clothed, it is stripped of its pretensions to good faith or reality. [204] The plaintiff had a right of pledge upon the crop, and the movables used in producing it, to satisfy his claim as lessor, and he had fifteen days after their removal from the leased premises in which to pursue them. Code of Practice art. 288. The rights of the lessor can not be affected by a sale made by a lessee to one of his creditors, and a fraudulent removal of the property from the leased premises by an agent of the purchaser for the purpose of placing it beyond the landlord’s reach. Denistown v. Malard, 2 Annual 14 Civil Code, arts. 3185, 3230, new numbers 3218, 3263. It follows that the cotton seized provisionally by plaintiff is subject to his claim for rent, and his right can be exercised to the exclusion of the Intervenor, who has no valid claim to it until the plaintiff’s judgment is satisfied. It is therefore ordered, adjudged, and decreed that the judgment of the lower court in favor of the plaintiff against the defendant for the amount of his demand and interest, and recognizing the plaintiff’s privilege and right of pledge as lessor upon the property provisionally seized, be affirmed, and that the judgment of the lower court in favor of Intervenor against plaintiff and defendant is avoided and reversed. It is further ordered, adjudged, and decreed that the provisional seizure of plaintiff is maintained, and that he have judgment against the defendant for the costs of the lower court on the principal demand, and' against the Intervenor for the costs of the intervention in that court; and all costs of this court.