Young v. Salley

CalhooNj T., delivered the opinion of the court. Young brought replevin on March 12, 1903, against Salley for “one sorrel blaze face mare,” and, as evidence in his behalf, offered the following paper: “Sixty days after date I promise to pay D. B. Young $65.00 for one mare. The title of said mare is to remain in D. B. Young until paid for. This 8 July, 1902. “T. J. X HARPER.” To the introduction of this Salley objected on the sole ground of the insufficiency of the desrciption of the mare, and the court sustained the objection, and Young excepted. Young then offered to prove that the mare seized in the possession of Salley under the writ of replevin was the identical mare which was the subject of the conditional sale to Harper evidenced by the paper, but the court sustained objection to this on the ground that, “the instrument itself being void because there was no description of the property in controversy, the description cannot be supplied by parol testimony.” Young excepted to this ruling, and then offered to prove that Salley knew the “condition of the title to this property when he traded for the mare,” and objection was sustained to this, and exception taken, and there was a peremptory instruction for Salley. The doctrine of ambiguities and voidness for uncertainty of description has no pertinency to this case. Young had the right to his own mare, whether found in the hands of Harper, his conditional vendee, or any purchaser from Harper, with or without notice of the reservation of title, unless — as is not the [364] case bere — possession for three years had made the statute of frauds applicable. Code 1892, § 4227. . Ketchum v. Brennan, 53 Miss., 607; 21 Am. & Eng. Enc. of Law (1st ed.), 653, 658; Brame & Alexander’s Digest, 1048, cl. 18; Duke v. Shackelford, 56 Miss., 552; Gayden v. Tufts, 68 Miss., 691, 10 South., 53. •The decision must be precisely as it should be if Harper had never disposed of the property and the controversy was between Young and Harper. In such case, surely, Young could show, as between them, that he sold a mare to Harper, and delivered the particular mare bagained for, and took the paper referred to in order to evidence the price agreed on and his reservation of title until payment made. If he could do this in a case between him and Harper, he may, under the authorities cited, do so in a case against a purchaser from Harper with or without notice, within three years from the time of delivery of the property to Harper. If Young had remained in possession of the property, and had never delivered it, and Harper, his vendee, had sued Young to compel delivery, a question of voidness for uncertainty of description might arise. It will never do to confuse the case at bar with the cases of purchasers at tax sales or trustees’ sales, where the original owner has never parted with possession. The burden was on Young to prove that the mare was his, that the sale was conditional, and that the condition had not been complied with. Ketchum v. Brennan, 53 Miss., 607. To this he should have been permitted to show the paper and to identify the mare as the one delivered under it. As to the doctrine of purchasers with notice, as Salley was in the case at bar, even if he had bought at a sale under a trust deed, he would be bound as to the property contracted about if it had been delivered to the trustee by the owner. Cowden v. Lockridge, 60 Miss., 385; Kelly v. Reid, 57 Miss., 91, 92. Delivery by the owner and acceptance by the vendee ascertain identity in the case before us. Reversed and remanded.