LeFlore v. Miller
LeFlore v. Miller
Opinion of the Court
delivered the opinion of the court.
The right of the plaintiff to the possession of the' mule was terminated by the tender of the purchase-money due and the pay
There is nothing in the record showing any lien upon the mule to secure advances made to the owner, and the defendant by virtue of his deed of trust was entitled to its possession subject alone to the claim of the seller for the unpaid purchase-money. The action was rightly instituted by the plaintiff, but after tender of the full sum due to him and the payment of accrued costs its further prosecution was wrongful, and the court below properly instructed the jury to find for the defendant, and properly awarded judgment against the plaintiff for the costs accruing after the tender. The plaintiff must have a right of possession not only at the institution of a suit but also at its termination. Helm v. Gray, 59 Miss. 54.
The plaintiff having shown no other, right to the possession of .the property than that arising from the terms of the conditional sale, and this right having been destroyed by tender of the purchase-money, cannot recover upon the ground that the mortgage under which the defendant claims was a conditional one, for if that be conceded it would only show that the owner and not the plaintiff is entitled to possession.
The judgment is affirmed.
Reference
- Full Case Name
- Greenwood LeFlore v. H. F. Miller
- Cited By
- 1 case
- Status
- Published
- Syllabus
- 1. Conditional Sale. Replevin for property. Tender of amount due. Case in judgment. L. conditionally sold a mule to W., retaining title till the purchase-money should be paid. N. & M., a mercantile firm, assumed the debt of W. to L. and took a deed of trust on the mule. L. took possession of the mule to secure the unpaid purchase-money. The trustee in N. & M.’s deed of trust then came and took the mule out of the possession of L., who sued out a writ of replevin and obtained a judgment for the mule before a justice of the peace. Thereupon the trustee paid the accrued court costs and tendered L. the unpaid purchase-money, which L. refused. The defendants appealed to the circuit court, and there tendered into court the unpaid purchase-money for the mule. That court adjudged the possession of the mule to the defendants, and also costs after the first tender. Held, that the judgment of the lower court is correct, the right of the plaintiff to possession of the mule having been terminated by the tender. 2. Same. Replevin. Right of third person to possession. Effect as to plaintiff. In the above-stated case the rights of L., the plaintiff, are not strengthened by the fact, if it be true, that the defendants are not entitled under their deed of trust to the possession of the mule, as against the grantor therein.