LeFlore v. Miller

Cooper, C. J., delivered the opinion of the court. The right of the plaintiff to the possession of the' mule was terminated by the tender of the purchase-money due and the pay [207] ment of the costs of suij; which had accrued up to the time of tender. There is nothing in the record showing any lien upon the mule to secure advances made to the owner, and the defendant by virtue of his deed of trust was entitled to its possession subject alone to the claim of the seller for the unpaid purchase-money. The action was rightly instituted by the plaintiff, but after tender of the full sum due to him and the payment of accrued costs its further prosecution was wrongful, and the court below properly instructed the jury to find for the defendant, and properly awarded judgment against the plaintiff for the costs accruing after the tender. The plaintiff must have a right of possession not only at the institution of a suit but also at its termination. Helm v. Gray, 59 Miss. 54. The plaintiff having shown no other, right to the possession of .the property than that arising from the terms of the conditional sale, and this right having been destroyed by tender of the purchase-money, cannot recover upon the ground that the mortgage under which the defendant claims was a conditional one, for if that be conceded it would only show that the owner and not the plaintiff is entitled to possession. The judgment is affirmed.