Hoff v. Rogers , 67 Miss. 208 ( 1889 )

Campbell, J.,

delivered the opinion of the court.

A result was reached in this case which a chancery court would approve, but under our execrable system of separate administration of law and equity the successful party must be deprived of his victory, because obtained in a court of law when it should have been in a court of chancery. The case made by the evidence is that of a partnership between H. C. Rogers and T. H. Rogers for the planting operations of the year 1888, and a deed of trust by T. H. Rogers to Block for his individual debt. Replevin was brought against T. H. Rogers, who was in possession of the cotton, and a recovery had against him by the trustee in the deed of trust. H. C. Rogers, the injured partner, brought replevin, when he should have resorted to chancery, for one partner, or part owner or tenant in common, cannot maintain an action at law for the joint property against another co-owner. This is settled law. If the position of H. C. Rogers was merely defensive, it would be different, but he is an actor asserting a right to recover the cotton against him who has recovered it from T. H. Rogers, who had possession of it, and as such he has no standing in a court of law.

We regret the impotence of 'the court in which the cause was pending to redress the wrong, and enforce the right of the suitor, but after exhausting • all effort to find some ground on which to maintain the right of the appellee in a court of law, are constrained by settled rules regretfully to drive him from the temple of justice, taxed with costs, not because he has not a meritorious cause, but because he mistook that particular apartment in the temple where suitors such as he should apply.

Reversed and remanded.