Conn v. S. Bernheimer & Son
Mississippi Supreme Court
From the chancery court of Claiborne county. Hon. L. McLaurin, Chancellor. Appellees, S. Bernheimer & Son, had a mortgage for $945.77 on certain cotton, executed by one Boren, which cotton was seized under execution on a judgment in a justice court, in favor of appellant, Conn, for $108.03 against said Boren.
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From the chancery court of Claiborne county. Hon. L. McLaurin, Chancellor. Appellees, S. Bernheimer & Son, had a mortgage for $945.77 on certain cotton, executed by one Boren, which cotton was seized under execution on a judgment in a justice court, in favor of appellant, Conn, for $108.03 against said Boren. The value of the cotton being over $150, Bernheimer & Son’supposed they could not interpose a claim for it before the justice, and therefore they sued out a writ of replevin for the same in the circuit court against Martin, the constable, who had levied the execution. Martin tailed to…
1Opinion of the CourtCooper, J.
The fact that appellees resorted to an action of replevin to recover the mortgaged cotton, in a state of case in which they were not entitled to that remedy, does not preclude them from asserting their incumbrance against it in this proceeding. They neither gained nor lost any right by the unauthorized suit, nor by converting the cotton into money while that suit was pending. They might have paid the value of the cotton to the officer from whose possession they had taken it, and then have interposed their claim to the fund in court which would have stood as the representative of the cotton.…
2Cases cited1 opinion
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