Bennett v. McKee
| Decision Date | 07 February 1905 |
| Citation | 38 So. 129,144 Ala. 601 |
| Parties | BENNETT v. MCKEE. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Marengo County; John C. Anderson, Judge.
Statutory trial of the right of property, instituted on the levy of an execution by George H. McKee against Richard Montgomery, M W. Bennett claimant. After the interposition of the claim said Bennett died, and the same was revived in the name of Caroline Bennett as his administratrix. From a judgment for the execution plaintiff, claimant appeals. Reversed.
On the 2d day of May, 1900, G. H. McKee, the appellee in this cause recovered a judgment in the circuit court of Marengo county against one Richard Montgomery (a defendant in execution) for the sum of $178.80, besides the cost of suit. On the 5th day of December, 1900, execution issued on this judgment at the suit of McKee, and the same was by the sheriff of Marengo county levied on the property in dispute, together with other property, as the property of the defendant in execution Richard Montgomery. Prior to the recovery of the judgment as before set out, Richard Montgomery (defendant in execution) rented out all his lands for the year 1900 to one Elbert Montgomery, he (Richard Montgomery) not raising any cotton at all. After having rented out his said lands, he gave I. A Agee a mortgage on all crops of cotton, etc., and in the body of said mortgage or instrument, in writing, transferred all his rents to I. A. Agee. The language of said mortgage as to the rent is copied in the opinion. Elbert Montgomery, the tenant, after having gathered the crop, placed 2,971 pounds of cotton in the seed in a house on the premises of the defendant in execution for I. A. Agee. It was not placed in said house for the landlord of Elbert, the said defendant in execution, but for I. A. Agee. I. A. Agee, prior to said levy, sold said cotton in dispute to M. W. Bennett, the deceased claimant, who paid Agee for same, but left the cotton where the same had been placed by the said tenant, Elbert Montgomery, for I. A. Agee. There is no evidence whatever that the defendant in execution, Richard Montgomery, at any time exercised any acts of ownership over said cotton, or ever claimed any possession thereof. Upon the claimant offering to introduce in evidence the mortgage from Richard Montgomery to I. A. Agee, the plaintiff objected to the introduction of said mortgage in evidence, and moved to exclude said instrument upon the following grounds: (1) Because the same is a mortgage, and was not recorded prior to the levy of the plaintiff's execution; and (2) because, under and by virtue of said instrument, the defendant merely mortgaged his rents, and said mortgage, being unrecorded, could not defeat the lien of plaintiff's execution. The court sustained the objection and motion, and excluded said instrument from the evidence before the jury, and to this ruling the claimant duly excepted. Upon the introduction of all the evidence, the claimant requested the court to give to the jury the general affirmative charge in her favor, and duly excepted to the court's refusal to give said charge as requested.
Canterbury & Gilder, for appellant.
Wm. Cuninghame, for appellee.
The fact that the cotton, when levied on, was in a house on the premises of the defendant in...
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...This conclusion was announced by this court in the case of Ivey v. Coston, 134 Ala. 259, 32 So. 664, cited with approval in Bennett v. McKee, 144 Ala. 601, 38 So. 129. introduction in evidence of the mortgage in support of the claimant's claim was objected to on the ground of its irrelevanc......
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... ... 368, sec. 1439, p. 485, sec. 1463, p. 491; ... Deming Inv. Co. v. Bank of Judsonia, 278 S.W. 634; ... Oswald v. Mollett, 39 Ill.App. 449; Bennett v ... McKee, 144 Ala. 601; Ala. Gold Life Ins. Co. v ... Oliver, 78 Ala. 162; 16 R. C. L., sec. 424, p. 918; ... L.R.A. 1915C, p. 230; Freeman ... ...
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Choctaw Bank v. Dearmon
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Gulf Life Ins. Co., Inc. v. Wal-Mart Stores, Inc., Civil Action No. 94-T-1139-N.
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