Garrett v. J. E. Carlton & Sons

Cooper, C. J., delivered the opinion of the Court. The appellees have introduced no evidenc tending to show a leg:al title to the property sought to be recovered by them. The extent of their claim is that it was conveyed by the owners to one Minor as trustee to recover certain debts due to plaintiff. If by reason of their conveyances a right is to be asserted in a court of law, the action should be in the name of the trustee who has the legal title and not bjr the beneficiaries who have not. Pollard v. Thomas, 61 Miss., 152. In Maxey v. White, 53 Miss., 82, this court detailed the correct practice to be followed in suits of this character, and which if adopted would relieve the parties from that uncertainty which otherwise must prevail as to what points are involved and to be tried. There is no reason why in these cases definite issues should not be arrived at by the usual form of pleading; but an impression seems to obtain, that in controversies between a plaintiff in replevin, and a landlord who has sued out a distress warrant, all that is necessary to be done is to get the parties in court, and this being done they are to be considered as at issue on all conceivable questions. In this case the declaration of the plaintiff was met by an avowry by the landlord, which on the facts therein stated clearly entitled him to maintain his writ. No issue of law or of fact was joined or tendered bj^ the plaintiffs; but they at once began to introduce evidence to show, that the landlord never advanced supplies to his tenant; that if he had done so he had received payment therefor; that he had ejected the tenant from a part- of the leased premises and therefore could not recover full rent; and [191] that he had permitted his stock to depredate upon the crops of the tenant, whereby a right to recoup the damages against the rent and supply bill had arisen. The landlord does not seem to have interposed any objection to evidence of these facts upon the ground that they were irrelevant because no issue was joined under which the proof ■could be made, but protested against proceeding with the trial on the ground that he was taken by surprise by the evidence. If it could be said that by failing to make the objection of the want of a proper issue the defendant has precluded himself from now making the point, it would remain true that his application for a continuance should have been granted, for it must be, that one who is not advised by the pleading of an intention on the part of his adversary to introduce such testimony as was here ■offered, is surprised thereby. There is another fatal defect in the plaintiffs case, which is, that it is no where shown in evidence ’that the cotton they have sued for was grown by the parties who executed the deed of trust through which they claim. The judgment is reversed and cause remanded.