Andrews Mfg. Co. v. Porter

• Decision Date: 16 June 1896
• Parties: ANDREWS MANUF'G CO. v. PORTER ET AL.
• Court: Alabama Supreme Court

20 So. 475

112 Ala. 381

ANDREWS MANUF'G CO. v. PORTER ET AL.

Supreme Court of Alabama

June 16, 1896

Appeal from district court, Lauderdale county; W. P. Chitwood Judge.

Action of trespass by the Andrews Manufacturing Company against George W. Porter and Frank M. Perry, in which the court gave the general affirmative charge for defendants. From a judgment for defendants, plaintiff appeals. Affirmed.

Pickett & Crow and Emmet O'Neal, for appellant.

Simpson & Jones, for appellees.

McCLELLAN J.

This is an action of trespass, prosecuted by the Andrews Manufacturing Company against George W. Porter and Frank M Perry, for wrongfully taking certain goods and chattels alleged to be the property of plaintiff. We do not understand that there was any conflict in the evidence to the establishment of the following state of facts: One Reeder being the owner thereof, leased a building in the town of Florence, for a term of three years commencing on October 20 1890, to the Alabama Banking & Trust Company, for a banking house, at $116.66 per month, payable in monthly installments and for each month on the first day thereof. Twelve of these notes, covering the year 1891, were assigned by Reeder to Frank M. Perry. On December 4, 1891, the notes for the rent for November and December not having been paid, he sued out an attachment against said tenant for the recovery of said arrears, on the ground that the tenant had failed, after demand made, to pay the same. This attachment was levied by George W. Porter, as sheriff, on the following property, viz.: Four desks, one counter and fixtures, one safe, one set of lock boxes, four office chairs, four small chairs, one stove, one letter press, one carpet, two waste baskets, two spittoons, two desks, and two doors and frames, all which was in the possession of the tenant (defendant in attachment) at the time of the levy, and all except one desk was found in the leased building, the desk levied on elsewhere having been in and a part of the furniture of the building during the year 1891, but prior to August 31st of that year. Of this property, "four desks," including the one not in the building at time of levy, "one counter and fixtures, four office chairs, four small chairs, and two desks," it is claimed by plaintiff, belonged to it at the time of the levy. Perry had judgment in that action, and all the property was sold in satisfaction thereof. This is the taking by Perry and Porter of which the plaintiff complains. It claims title to the property under a bill of sale executed to it by the banking company, tenant and defendant in attachment, on August 31, 1891. At that time all the property except the one desk referred to above was in the building, and that desk had been there earlier in that year, as we have seen, and the rent for the building had been paid up to September 1, 1891. The consideration for this sale was an antecedent debt due by the tenant, the banking company, to the manufacturing company; that latter at the time having notice of the landlord's rights. Under it, the latter took possession of the property, but immediately rented it to the tenant, at a stipulated monthly rental; and it continued in the possession of the tenant until levied on and taken away by the sheriff. Soon after the levy, plaintiff notified the sheriff of its claim to the property, and demanded possession of it, which was...