Moss v. Johnson ( 1876 )

Howell, J.

On the twentieth of December, 1872, Arthur Johnson acknowledged in writing that Moss, Wise & Co. had furnished him provisions and supplies to the amount of two hundred dollars to make the crop of that year, recognizing a privilege therefor, and obligating himself not to alienate or to incumber said crop to the prejudice of said lien. This writing was signed also by Moss, Wise & Co., and recorded on the day of its date. On the same day Moss, Wise & Co. instituted this suit against Johnson for $559 10, claiming privilege for $304 30 thereof, and caused ten bales of cotton on the 1’Argent plantation to be sequestered as the property of said Johnson. And on the twenty-third of December, 1872, they entered into a written compromise and settlement by which the ten bales of cotton, estimated to weigh forty-two hundred pounds, were sold to Moss, Wise & Co for $750, $519 10 thereof to go to the extinguishment of said claim, twenty-five dollars to pay costs of the suit, and the balance ($165 90) was paid to Johnson.

On the sixth of January, 1873, F. O. Minor filed an intervention, averring that, prior to the above seizure and recordation of privilege, the said cotton had become his property for a valuable consideration and by actual delivery to his agent, who afterward returned three bales thereof to said Johnson at his urgent request, leaving seven bales, worth $560, belonging to intervenor, of which he prayed to be decreed the owner and to recover the same or its value with interest, costs, and $150 damages from Moss, Wise & Co. and the sheriff as co-trespassers.

On the thirteenth of January, 1873, this petition with citation was served on plaintiffs, and on the sheriff on the twentieth of the same month. Default was taken on the twenty-second of April following, and on the twenty-second of April, 1875, answer was filed by the plaintiffs, who had made two unsuccessful efforts to dismiss their suit. From a judgment rejecting intervenor’s demand he has appealed.

We think the judgment correct. If intervenor’s suit be considered as founded on aisale, there was not a delivery so as to preclude the creditors of the vendor from seizing the property for their debts; and if it be viewed as a giving in payment, it was ineffectual for want of delivery.

Judgment affirmed.