Jared E. Kirby v. J. J. Coldwell's Administrator, 26 Miss. 103

Mr. Justice Fisher delivered the opinion of the court. The only point requiring consideration arises upon the plaintiff’s demurrer to the defendant’s second plea; for the better understanding of which, we will briefly state the cause of action set forth by the declaration. The first count of which is in trover, and avers that the plaintiff, being possessed of a certain quantity of corn and fodder of the value of $1,000, casually lost the same, which afterwards came to the possession of the defendant, who converted the same to his own use.

The second count alleges that the defendant, as sheriff of Panola county, levied an attachment against the estate of the plaintiff upon the said corn and fodder. That the plaintiff, who was the defendant in the attachment, appeared at the return term thereof, and upon his motion it was quashed; whereupon it became the duty of the defendant immediately to restore the said property to the plaintiff; which duty he (the defendant) failed to perform, but wasted the said property.

The plea under consideration sets forth that the property, having been adjudged by three respectable freeholders to be of a perishable nature, was sold “ at public vendue ” for the sum of one hundred and forty dollars. To this plea the plaintiff demurring, assigned as causes, 1. That it is not averred that the defendant, as sheriff, gave ten days’ notice of the time and place of the sale. 2. That it is not averred that the defendant deposited the money arising from the sale with the clerk of the court into which the attachment was returnable, as required by the statute.

The statute declares, that if three freeholders shall, under oath, certify that in their opinion the goods are of a perishable nature, and in danger of immediate waste and decay, and the person to whom they belong shall not, within twenty days after serving such attachment, replevy the same, then such goods and chattels shall be sold at public vendue by the sheriff, “ he having advertised such sale at the court house and other public places in his county at least ten days before the sale.” The statute further declares, that the money arising from the sale shall be deposited in the hands of the clerk of the court, “ to abide the event of such suit.” Hutch.

Code, 806, § 22. The object of the ten days’ notice was to inform the public of the time and place of the sale, that the rights of the owner of the property might be fully protected, in having it sold for its full market value. However the rule may be as to third parties, or innocent purchasers of the property, without notice of the irregularity of the sale, it has no application to a controversy between the owner of the property, and the sheriff. The law has prescribed the manner in which he must perform his duty.

He could not make a sale of the property which would bind the plaintiff to receive less than its fair market value, without a strict compliance with the law. The very point in controversy in the court below under the pleading was, whether the plaintiff was entitled to recover the fair market value of the property at the time the attachment was quashed, or whether he should be required to receive in full satisfaction therefor the $140, the proceeds of the sale. This was the only issue presented by the pleadings.

The question, therefore, naturally presents itself, whether the plea disclosed a valid defence in this respect to the defendant, or, in other words, a sale conducted according to the plain and unmistakable language of the statute. To this but one answer can be given, and that is, that it does not appear that the notice for ten days was given as required by law, without which there could be no disposition of the property requiring the plaintiff to receive less than its fair value.

The plea, to avail the defendant, must not only show a sale, but a sale conducted in every essential particular according to the requirements of the statute. This it fails to do, and it is therefore defective. The second cause of demurrer may be disposed of in few words. The plea should certainly have shown that the money was either deposited at the proper time with the'clerk, or that it was, before the suit was commenced, tendered to the plaintiff, and that he refused to receive it; in which event, it should have been brought into court.

As the plea appears upon its face, it confesses a cause of action to the amount of $140, and sets forth no excuse for not discharging it. Under any view of the case, the plaintiff ought to have recovered to this amount and costs of suit; and yet, strange to say, on sustaining the demurrer to plaintiff’s replication to the second plea, judgment is rendered that he take nothing by his bill, &c. Judgment reversed. Judgment in this court sustaining the demurrer to the second plea. Judgment of respondeat ouster, and cause remanded.