Alexander v. Zeigler

Truly, J., delivered the opinion of the court. The ¡peremptory instruction given for appellee (defendant below) cannot be sustained upon either ground assumed by counsel. The rule that one tenant in common cannot institute replevin against his co-tenant does not control this case. Horton was a tenant, and appellee was his landlord. This point was expressly decided, upon almost identical facts, in Schlicht v. Callicott, 76 Miss., 487 (24 South., 869). The trust deed from Horton to appellant conveyed the interest which Horton had in the crops to be produced, and, after condition broken, authorized appellant, as trustee, to obtain possession of such products. The decision in the case cited is a full and complete answer to the argument presented by counsel for appellee on the first ground. Nor can the action of the court be sustained upon the idea that there was no proof that the particular cotton seized by the officer, and the subject of this controversy, was in fact produced by the grantor in the trust deed, who was also the tenant of the appellee: (1) Because the testimony was ample, standing undenied and unexplained, to have authorized the jury to find that the cotton was so produced. The tenant, Horton, testified that he raised the cotton in controversy bn the land of the appellee; and, if this was true, appellant was entitled to the possession thereof. Hpon a motion to exclude the testimony, not only the facts expressly testified to, but all inferences necessarily and logically to be deduced therefrom, are to be taken as true, in favor of the party against whom such motion is interposed. (2) In addition to the above, by the undisputed testimony of three witnesses, appellee had waived his lien as landlord on the crop to be produced by Horton, and subordinated the same to the claim for supplies to be furnished under the trust deed. It was also proved that the appellee had received four bales of cotton from his tenant, all of which, under the waiver, was subject to [565] the lien of appellant’s trust deed, and had mingled the same with his own cotton. Under this state of facts, he was estopped to deny that the particular bale of cotton seized was in fact one of the bales produced by the tenant on the leased premises. Under no phase of the case as presented by this record was the action of the court in directing the verdict for appellee authorized. In the absence of all denial and contradiction, appellant was entitled to a peremptory instruction on the case made. Reversed and remanded.