Johnston v. Standard Oil Co. , 71 Miss. 397 ( 1893 )

Woods, J.,

delivered the opinion of the court.

All the evidence in the case shows quite satisfactorily that Brown, the execution debtor, made no sale of the horse to the appellee, and the execution of what the appellee in his evidence calls a bill of sale, does not make that a sale which clearly was not. The agreement as to the’horse between the claimant and the execution debtor was only an executory undertaking by Brown to sell the horse, when and where and as he would, and apply the proceeds to the payment of his debt to appellee. If he never sold, there could be no application. If the horse had died before sale, the loss must certainly have been Brown’s. Appellant was no way interested until the horse was sold, and then he had an agreement with Brown by which he was to have the purchase-money of the horse and credit Brown with that sum. The horse remained in Brown’s possession with the right to use him, and to sell him, as we have said, when and where and as he wished. These facts show there was no sale, no legal sale, and the appellee should have prevailed in the trial below.

We are constrained, however, to reverse the judgment appealed from, because of error complained of in the instructions given for appellee. It has long been held by this court that, in a suit of this character, the value of the property at the time of trial, with interest from that date, is the measure of the plaintiff’s recovery, if successful, and not the value at any prior time. Selser v. Ferriday, 13 Smed. & M., 698. The rule announced in George v. Hewlett, and re-affirmed in Acme Lumber Co. v. McPherson, both in 70 Miss., is inapplicable on the trial of a claimant’s issue, for the obvious reason that in a controversy of the character involved in that issue there is no wrongful taking or withholding of the property from the owner by the claimant. The property is not that of the execution creditor, but is or is not that of his debtor, and its real status can only be determined by a trial of a claimant’s issue. It is true that vexatious delay may occur, and the value of the property may be depreciated, but that is only an ordinary incident to many phases of litigation.

We will re-instate, however, the first verdict, as the appellant is entitled to that. The verdict is for an amount greater than the judgment debt, and the judgment on this verdict is for the like excessive amount; but this is formal, and the satisfaction of the amount, principal and interest, of appellee’s judgment against Brown, the judgment debtor of the oil company, will discharge the re-instated judgment. If the appellee should undertake to exact more than the amount of its demand against Brown, under the judgment against him, a motion in the court from which the execution issues will readily protect the appellant.

The judgment appealed from loill he reversed, and the first verdict re-instated, and judgment entered here on the same.