Quarles v. Hucherson , 139 Miss. 356 ( 1925 )

^* Headnotes 1. Replevin, 34 Cyc., p. 1354; 2. Pleading, 31 Cyc., pp. 548, 549; 3. Pleading, 31 Cyc., pp. 68, 556, 557, 564; Replevin, 34 Cyc., p. 1466; 4. Chattel Mortgages, 11 C.J., Section 188; 5. Chattel Mortgages, 11 C.J., Section 251. This is an action of replevin in which the appellee, who was the plaintiff in the court below, was awarded the possession of a piano. The declaration alleges:

"That heretofore, on or about the 31st day of March, 1924, Mrs. Vade Woods and her husband, K.G. Woods, executed and delivered a note to the Bank of Kemper, secured by a deed of trust on one Kingsbury piano made by the Cable Company of Chicago, Ill., of the value of four hundred dollars, which said property was and is in Kemper county, Miss. That said deed of trust is of record in the records of Kemper county, Miss., in trust deed record No. 28 and at page 37 thereof, reference to which is here made, and same is asked to be considered as though it was a part hereof. That the said piano is the property of H.G. Hucherson, substituted trustee for the Bank of Kemper, and that R.M. Quarles, the defendant, has the possession of said property, and unjustly refuses to deliver same to this plaintiff as trustee for the Bank of Kemper."

Copies of the note and deed of trust referred to in this declaration were not filed therewith.

On the trial of the case the appellee was permitted, over the objection of the appellant, to introduce in evidence the note and deed of trust referred to in the declaration; the ground of the appellant's objection thereto being that copies thereof were not filed with the declaration.

The note secured by this deed of trust was not due when this action was begun. One of the provisions of the deed of trust is:

". . . . And until said note is due and default is made in its payment I am to remain in quiet and peaceable possession of the property herein conveyed, unless I should, at any time before maturity of said note, sell or otherwise dispose of some part of said property without the consent of the said Bank of Kemper, in which event the title to the property herein conveyed shall be vested absolutely in the said R.A. Bryan, trustee as aforesaid, and he shall therefore be vested with the power and right to sell the same, and apply the proceeds of said sale as if the note was due and default of payment had been made; and if the trustee herein appointed should die, or shall at any time fail or refuse to act, then the said Bank of Kemper is hereby fully authorized to appoint another trustee, who shall be clothed with the same authority to execute this trust that the R.A. Bryan is vested with."

The appellant, pursuant to this provision of the deed of trust, was appointed trustee therein in place of Bryan, by a written instrument executed before, but which was not filed for record in the office of the chancery clerk until after, the commencement of this action.

After the execution of the deed of trust, and before this action was commenced, the piano was sold to the appellant by a constable under an execution issued on a judgment rendered against Woods, pursuant to which sale possession of the piano was surrendered by Woods to the appellant. It does not appear from the record whether the lien of this judgment was superior to that of the deed of trust, but no point is made thereon by counsel for either party.

The appellant's contentions are: (1) The deed of trust under which appellee claims was not admissible in evidence for the reason that a copy thereof was not filed with the declaration. (2) This action was prematurely brought for two reasons: (a) The instrument by which the appellee was appointed as substituted trustee in the deed of trust had not been filed for record in the office of the chancery clerk; and (b) the note secured by the deed of trust had not matured, and the piano had not been sold or otherwise disposed of by Woods.

Sections 734, and 735, Code of 1906 (sections 517 and 518, Hemingway's Code), provide that:

"In actions founded on any writing, a copy of such writing, with the names of subscribing witnesses, if any, shall be annexed to or filed with the declaration; and evidence thereof shall not be given on the trial unless so annexed or filed.

"A copy of any writing of which profert is made, or ought to be made, in any pleading, shall be annexed to or filed with the pleading, with the names of the subscribing witnesses, if any, and evidence thereof shall not be given at the trial unless so annexed or filed."

In order for a writing to be the foundation of an action, it must be of such character that it cannot be availed of as the basis of the plaintiff's claim unless it is alleged and counted on in the declaration. It was only of such writings, and of a very limited class thereof, that profert was necessary at common law. Andrews Stephen's Pleading (2d Ed.) section 256; 31 Cyc. 547; 16 Enc. of Pleading and Practice, 1082.

Replevin is not an action ex contractu, but is one exdelicto. Burrage v. Melson, 48 Miss. 237; 34 Cyc. 1354; 24 Am. Eng. Ency. of Law (2d Ed.) 477. It does not arise out of and is not founded on contract, but arises out of fault, misconduct, or malfeasance, to-wit, wrongful taking or detention of property. 23 R.C.L. 854. Consequently a writing evidencing the plaintiff's title to the property is not the foundation of the action but is a mere matter of inducement.

A declaration in replevin which alleges ownership is sufficient (Young v. Terry, 129 Miss. 281, 92 So. 76), and allegations therein, which set forth the evidence on which the ownership is based, are surplusage and may be disregarded. Odom v. Harris,34 Miss. 410, 31 Cyc. 556; Conner v. Bludworth, 54 Cal. 635;Parker v. Brooks, 16 Ill. 64.

Section 2773, Code of 1906 (section 2277, Hemingway's Code), requires the appointment of a substituted trustee in a deed of trust on real property to be recorded in the office of the chancery clerk of the county where the land is situated, but we have been referred to no statute requiring the recording of the appointment of a substituted trustee in a deed of trust on personal property, and we know of none such. In the absence of such a statute, the substitution of such a trustee is complete when made in accordance with the provisions therefor in the deed of trust.

The sale of the piano under the execution on a judgment against Woods was in effect a sale by him. When Woods permitted a judgment to be rendered against him, he thereby, to all intents and purposes, authorized the sale of the piano in the manner provided by law for the satisfaction of the judgment, and the officer making the sale was in effect his agent for that purpose. Moreover, the right of the appellee to the possession of the piano, prior to default being made in the payment of the debt secured by the deed of trust, is not restricted to the sale of the piano by Woods. The language is "sell or otherwise dispose of" it, and a disposition of the piano, which is the equivalent of and has the same effect as a sale thereof by Woods, is clearly embraced therein. The action, therefore, was not prematurely commenced.

Affirmed.