Dillard v. Johnson

• Decision Date: 09 May 1918
• Docket Number: 4 Div. 780
• Citation: 201 Ala. 634,79 So. 106
• Parties: DILLARD et al. v. JOHNSON.
• Court: Alabama Supreme Court

79 So. 106

201 Ala. 634

DILLARD et al. v. JOHNSON.

4 Div. 780

Supreme Court of Alabama

May 9, 1918

Appeal from Circuit Court, Geneva County; H.A. Pearce, Judge.

Suit by S. Johnson against J.M. Dillard and another. From judgment for plaintiff, defendants appeal. Transferred from the Court of Appeals under section 6, p. 449, Acts 1911. Affirmed.

Suit by appellee against appellants commenced on July 29, 1916, for the recovery of damages for the breach of a certain claim bond executed on January 19, 1916, by J.M. Dillard, as principal, and T.S. Faulk, as surety. The defendants filed special pleas, setting up that, at the time of the attachment the property was not subject to the writ, for that the defendant Dillard held the property under a paramount lien to the claim of the plaintiff, and upon a plea of set-off. But by agreement of the parties the cause was finally tried upon the plea of general issue, with leave to give evidence in any matter which would support a good special plea, as is disclosed by the judgment in the case. The cause was tried before the court without a jury, and witnesses examined orally. From the judgment for the plaintiff, the defendants prosecute this appeal.

S Johnson, the appellee and plaintiff in the court below, had leased from the defendant J.M. Dillard a certain plantation containing 265 acres, under a lease contract entered into on September 1, 1913, for a term of five years. Said lease contract is set out in the record, and contains certain reciprocal provisions, among them, one providing that upon the lessee failing to pay the rent the lessor is authorized to take full possession of the premises, etc. In the year 1915, plaintiff, Johnson, was in possession of said property under said lease, and had sublet a portion of the same to J.A. and Clarence Jackson, who were due Johnson rent on November 9, 1915. On said date Johnson commenced a suit by attachment against the said Jacksons to recover the sum of $223, alleged to be due by them as a balance for rent for 1915. The writ of attachment was levied by the sheriff upon certain crops grown by the Jacksons during the year 1915 on the land leased, as to the value of which, as ascertained by the court, no point is raised. Thereupon J.M. Dillard, with T.S. Faulk as surety, executed the bond sued on, which contained the statutory conditions required of claim bonds executed for the trial of the right of property. J.M. Dillard signed the affidavit necessary to interpose the claim, but the officer taking the affidavit did not subscribe his name thereto. The bond executed by Dillard, with Faulk as surety was duly approved, and the property delivered to Dillard.

It is admitted that this property so turned ever to Dillard upon the execution of the claim bond has never been delivered to the plaintiff or surrendered to the sheriff of Geneva county. Plaintiff also offered proof to show of what the property consisted, viz. corn, beans, etc., and the value thereof. That the property at the time of the levy was on the part of the place rented by the Jacksons, and that the said Jacksons defendants in the attachment suit, were in possession of the property at the time of the levy.

When the claim suit was called for trial on March 15, 1916 plaintiff moved to dismiss the same because of lack of statutory affidavit to support the claim; and, the claimant in open court declining to make said affidavit, judgment was entered, dismissing the claim suit. At the same term of said circuit court, on the same day (March 15, 1916), plaintiff S. Johnson recovered judgment for $156.93 against J.A. and Clarence Jackson, and the property attached was condemned to the satisfaction thereof.

Defendants offered proof tending to show that J.A. and Clarence Jackson had rented some of this land from Dillard in 1913, and that tn 1915 they were due him $500 or $600, and that on November 29, 1913, they executed a note and mortgage for $319, which had been renewed by another note; that on February 20, 1915, they executed a mortgage to Dillard for $549.53, which was given to better secure the note and mortgage of November 29, 1913; and that it had never been paid. This mortgage was then offered in evidence, and purports to convey the entire crop raised by the mortgagors during the years 1913, 1914, and 1915 in Geneva county. The mortgage of February 20, 1915, was also offered in evidence, and contains similar provisions.

Defendant Dillard also testified that on March 26, 1915, J.A. Jackson executed a mortgage to him for $80, which had never been paid, and purports to convey crops raised during the years 1915, 1916, and 1917. Said last-mentioned mortgage was also offered in evidence, which, however, was payable to T.S. Faulk & Co. Defendant Dillard further testified that he had deposited these mortgages in the bank as collateral, and that Jackson had turned this property over to him about a month before the attachment was levied.

There is other evidence tending to show that some of the crop levied upon had been locked in the crib by the Jacksons at the request of the bank; but other evidence tends to show that the Jacksons kept the key, and continued to use the corn from the crib, and to retain possession of the property.

Defendant Dillard testified that, in addition to the rent due him by plaintiff, Johnson, the latter was also due him $283.39, as a balance for the previous year on rent and advances, and that to secure the same said Johnson executed a mortgage to him on February 20, 1915, and due October 15, 1915, purporting to convey crops of 1915, which also contained a provision for the payment of attorney's fee if placed in the hands of an attorney for collection. Defendant Dillard also offered in evidence the note and mortgage executed by Johnson for rent for the year 1915, of 10,000 pounds of lint cotton, which note provided for the payment of a reasonable attorney's fee, in the event suit was brought to enforce the collection thereof. These notes were also placed with the bank as collateral, and were afterwards turned over to an attorney for collection. The proof shows that Johnson, by his son, paid the $283.39 note to the bank, obtaining a receipt therefor, but did not get the note.

Defendant Dillard, insisting upon a forfeiture of the lease contract by Johnson in failing to pay the rent when due, brought suit against the plaintiff, Johnson, on January 19, 1916, in the justice court for unlawful detainer; and in the complaint filed sought recovery of the property leased, together with $100 for the detention thereof. This suit progressed to trial, and on January 29, 1916, judgment was rendered in favor of Dillard against Johnson in the unlawful detainer suit. The judgment, however, was silent as to any damages for the detention thereof.

On November 29, 1915, the defendant Dillard brought suit against plaintiff, Johnson, for the amount due for rent of the place in question, the trial being had on December 13, 1915, and judgment was rendered for the plaintiff in the sum of $99.75 and costs, and an order made, condemning the property levied on. From this judgment, the defendant S. Johnson, on January 17, 1916, sued out a writ of certiorari, and the cause was carried to the circuit court and submitted to the trial judge along with the case here in question. Upon a trial of that case, the court rendered a judgment in favor of the plaintiff against the defendant in the sum of $38.44, together with costs, and an order was made, condemning the property attached to the satisfaction thereof.

In the case in question, involving the damages for a breach of the claim suit bond, the court found that the value of the property taken possession of by the defendant under the bond sued on was $134.97, and the amount of the judgment in the case of J.M. Dillard against S. Johnson, pleaded by the defendant as to the set-off, to be, principal, $38.40, and costs, $25.70, making a total of $64.14. Judgment was then rendered in favor of the plaintiff, Johnson, against the defendants Dillard and Faulk in the sum of $70.83 and costs.

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