American Trust & Savings Bank v. Turner

• Decision Date: 19 November 1918
• Docket Number: 1 Div. 249
• Citation: 80 So. 176,16 Ala.App. 602
• Parties: AMERICAN TRUST & SAVINGS BANK v. TURNER et al.
• Court: Alabama Court of Appeals

80 So. 176

16 Ala.App. 602

AMERICAN TRUST & SAVINGS BANK v. TURNER et al.

1 Div. 249

Court of Appeals of Alabama

November 19, 1918

Appeal from Circuit Court, Monroe County; Ben D. Turner, Judge.

Claim suit by James K. Kyser against the American Trust & Savings Bank, which sought execution against property of P.W. Turner its judgment debtor. Judgment for claimant, and plaintiff bank appeals. Affirmed.

Claim suit instituted by the appellee to try the rights of property. From a judgment for the claimant, plaintiff appeals.

On December 29, 1915, one P.W. Turner, who was a judgment debtor of the American Trust & Savings Bank, against whom a judgment had been rendered and regularly recorded, purchased from one Paul Crawford a Chandler automobile, which automobile is the basis of this litigation. On the date of the purchase, he executed to Crawford an instrument in writing under the terms of which he promised to pay Crawford the sum of $1,250 as purchase money for the automobile, and in which instrument to secure the payment of the amount, Crawford retained title to the automobile. This instrument was duly filed for record in the office of the judge of probate of Monroe county, on December 29, 1915.

Turner being unable to meet the payments due to Crawford in accordance with the agreement, some time in January, 1916 made an agreement with one Kyser, the claimant here, whereby Kyser agreed to advance for Turner the sum of $1,000 to be applied on the payment of the purchase price of the car, the advance being made with the distinct agreement between Turner and Kyser that Kyser should have the security held by Crawford. In pursuance of this agreement, Turner drew his draft on Kyser for $1,000 which said draft was paid, and this money, together with $250, was applied to the payment of the paper held by Crawford; the Crawford paper being then due and in the Monroe County Bank for collection. The Monroe County Bank honored the draft after its cashier had advised Kyser that the Crawford papers were in the hands of the bank.

Subsequent to that time, and without the knowledge of Kyser, Turner executed a mortgage to Kyser for $1,000 on the automobile and delivered the mortgage to the judge of probate for record.

On March 18, 1916, an alias execution was issued from the circuit court of Monroe county, Ala., upon a judgment obtained in said court by the American Trust & Savings Bank on the 18th day of November, 1914, and filed in the office of the judge of probate of Monroe county for record on December 2, 1914. The execution was levied on the automobile in question, it being at the time in the possession of Turner, the defendant. Kyser filed his claim, supported by affidavit, and the car was released to him. Upon the trial in the circuit court of Monroe county, there was judgment for the claimant, and from the judgment the plaintiff appeals.

Winkler & Smith, of Birmingham, and L.S. Biggs, of Monroeville, for appellant.

Barnett, Bugg & Lee, of Monroeville, for appellee.

SAMFORD J.

There are two questions presented by this record for review:

First. Is the claimant entitled to be subrogated to the fights of Crawford in the automobile?

Second. If so, is the affidavit of the claimant propounding his claim broad enough to meet the requirements of the statute?

The second question will be dealt with first.

Before there can be subrogation, there must, of course, be an obligation; but the retention of title by the seller in a note given for the purchase money of personal property does not prevent the enforcement of the obligation to pay the entire purchase price, and the retention of title is at most a security for the payment of the purchase money. Davis v. Millings, 141 Ala. 378, 37 So. 737; Bingham v. Vandegrift, 93 Ala. 283, 9 So. 280; Tanner & De Laney Hall, 89 Ala. 628, 7 So. 187.

Under our statutes, any person holding a claim, either legal or equitable, to personal property, may institute a claim suit to try his rights to it at law, as though he had the legal title. Code 1907, § 6039.

The claimant, in making his affidavit, averred that he had a just claim to the property levied on, viz. that he holds title to and owns said property. If his contention be correct that he is entitled to be subrogated to the rights of Crawford, who...