Richardson v. Toliver

Woods, J., delivered the opinion of the court. There is a direct conflict in the evidence in a material matter, and the peremptory instruction given for defendant below was error. Morris Rothschild testified that, after the execution of the first trust-deed by appellee’s husband, on one occasion, when appellee was making some purchases in the store of Rothschild & Bro. — the beneficiaries in the trust-deed — on the account secured by that deed, the witness informed her of the fact that the horse in controversy was included in the trust-deed, and she made no claim to the animal. From the evidence of D. C. Miller it appears that appellee stated to this witness that she knew her husband [968] had. given a deed of trust — the last one — on her horse, but she said nothing about it, as she wished to help him out. T. J. Williams testified that, on a different day, appellee made substantially the same statement to him. It is shown by the evidence of Rothschild, and admitted in the agreed statement of facts signed by the counsel of both parties, that the balances from the accounts secured by the first and second trust-deeds are the consideration, in whole or in part, for the note secured by the last trust-deed. On this evidence, offered by plaintiff below, the appellee is estopped to deny the right of the beneficiaries to have satisfaction of their debt out of the horse, if necessary. See Levy v. Gray, 56 Miss., 318. The issues of fact thus raised by the evidence of appellants, and that of appellee -directly to the contrary, should have been submitted to the jury for its determination. Reversed and remanded.