British & A. Mortg. Co. v. Cody

• Decision Date: 28 February 1903
• Citation: 33 So. 832,135 Ala. 622
• Court: Alabama Supreme Court
• Parties: BRITISH & A. MORTG. CO., LIMITED, v. CODY.

33 So. 832

135 Ala. 622

BRITISH & A. MORTG. CO., LIMITED, v. CODY.

Supreme Court of Alabama

February 28, 1903

Appeal from Circuit Court, Crenshaw County; J. C. Richardson, Judge.

Attachment by the British & American Mortgage Company, Limited, against M. J. Barnes, in which J. M. Cody interposed a claim whereupon a trial of the right of property is had. From a judgment for the claimant, the attachment plaintiff appeals. Affirmed.

Rushton & Powell, for appellant.

Bricken & Bricken and C. E. Hamilton, for appellee.

HARALSON J.

Trial of the right of property.

In a case of this character, the plaintiff must first make out a prima facie case of liability of the property levied on to his execution or attachment, which he may do by proving that the goods were in the possession and control of defendant at the time of the levy, and when he has done this, the burden is cast on the claimant to show title in himself (Foster v. Goodwin, 82 Ala. 384, 2 So. 895; Ross v Lawson, 105 Ala. 553, 16 So. 890; 4 Mayfield, Dig. 980 § 113b), or, under the present statute, that he has a lien upon or an equitable title to the property (Code, § 4141; Ballard v. Patapsco G. Co., 107 Ala. 710, 19 So. 777; Wells v. Cody, 112 Ala. 278, 20 So. 381).

The plaintiff proved his prima facie case by the sheriff, who swore that he levied the attachment upon the property claimed in the suit, while it was on the place cultivated by defendant, Barnes, in the year 1898, and was a part of the crop raised by defendant on the place during that year. He also testified to the value of the property levied on. On this proof, he was entitled to recover, unless the claimant, on whom the burden was thus shifted, proved his claim to the property levied on, to be superior to plaintiff's which he attempted to show.

The facts developed on the trial, showed that on the 6th of September, 1897, the plaintiff entered into a written contract of sale of certain lands, on which the crops levied on were raised in 1898, to one M. J. Barnes. The purchase money, besides $45 which was paid in cash, was payable on the 1st October of each year for four years, for which the notes of the purchaser were executed to the plaintiff. The contract contained the following among other provisions: "In case the said second party [Barnes] shall fail to make the payments aforesaid, or any of them punctually and upon strict terms and at the times above limited, and likewise to perform and complete all and each of the agreements and stipulations aforesaid, strictly and literally, without any failure or default, time being of the essence of this contract, then this contract, from the date of such default, [shall] be null and void, and all rights and interests hereby created or then existing in favor of said second party [Barnes], his heirs or assigns, or derived under this contract, shall utterly cease and determine, and the premises hereby contracted shall revert to and vest in the said first party [the plaintiff], its successors or assigns, without any declaration of forfeiture or act of reentry, or without any other act by said first party to be performed, and without any right in said second party of reclamation or compensation for moneys paid or improvements made, as absolutely, fully and perfectly as if this contract had never been made. And it is hereby further covenanted and agreed by and between the parties hereto, that immediately upon the failure to pay any of the notes above described, all previous payments shall be forfeited to the party of the first part, and the relation of landlord and tenant shall arise between the parties hereto, for one year, from January 1st immediately preceding the date of said default, and the party of the second part shall pay rent, at the rate of ($35) thirty-five dollars for occupying the premises from said January 1st, to the time of default, such rent to be due and collectible immediately upon such default," etc.

The testimony shows, that Barnes failed to make the first payment due 1st of October, 1898, and that he made the crops levied on, on the place during that year. The plaintiff as landlord sued out an attachment and the same was levied on the property involved as a part of the crop so raised on said place, in order to recover the $35 rent, which by the terms of the contract, defendant, Barnes, as tenant agreed to pay, in case he made default in the payment of any of said purchase money notes.

The claimant, J. M. Cody, the appellee, claimed title to the property so levied on, by reason of a mortgage executed by the defendant, Barnes, to him, on the 17th March, 1898, on the crops in question, to secure advances made by him to said Barnes to enable him to make the crop cultivated by him in 1898, on said farm, which mortgage was, on the day of its execution, duly acknowledged and recorded in the probate office of the county.

The case of Waite v. Corbin, 19 So. 505, 109 Ala. 154 was one like the present case in its essential features. The report of the case in 19 South., 109 Ala., shows that the contract was one for sale of the premises, and if the purchaser should fail to pay the...