Drennen Co. Department Stores v. Brown

• Decision Date: 19 March 1925
• Docket Number: 6 Div. 347
• Citation: 103 So. 588,212 Ala. 524
• Parties: DRENNEN CO. DEPARTMENT STORES v. BROWN.
• Court: Alabama Supreme Court

103 So. 588

212 Ala. 524

DRENNEN CO. DEPARTMENT STORES v. BROWN.

6 Div. 347

Supreme Court of Alabama

March 19, 1925

Appeal from Circuit Court, Blount County; O.A. Steele, Judge.

Trial of the right of property between the Drennen Company Department Stores, as plaintiff in execution, against W.P Elrod, defendant, and L.H. Brown, as claimant of the property levied on. Judgment for claimant, and plaintiff appeals. Transferred from Court of Appeals under section 7326, Code of 1923. Reversed and remanded.

Ward Nash & Fendley, of Oneonta, for appellant.

Russell & Johnson, of Oneonta, for appellee.

SOMERVILLE J.

Section 10379, Code of 1923, provides that:

"When the claim interposed [in trial of right of property] is based on a mortgage or lien the claimant must state in his affidavit the nature of the right which he claims."

In Hall, etc., Co. v. Haley, etc., Co., 174 Ala. 190 195, 56 So. 726, 728 (L.R.A.1918B, 924) we said "A claimant who fails to thus propound the nature of his claim cannot be allowed to support it by evidence of either mortgage or lien. 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. The introduction in evidence of the mortgage in support of the claimant's claim was objected to on the ground of its irrelevancy to the issue, and, no foreclosure being shown, the objection should have been sustained."

Counsel for appellee conceive that the operation of the statute is avoided in this case by reason of the fact that the claimant effected a foreclosure of his mortgages after the institution of his claim suit. This theory is entirely erroneous. The status of the title, for every purpose of this claim suit, must remain what it was at the date of its institution, which of course relates back to the date of the levy of the execution. So far as the plaintiff in execution was concerned, the foreclosure was impotent and ineffective, and could not affect in any way or degree his rights as contesting plaintiff. When the claimant instituted his claim suit by filing his affidavit and bond, he was a mortgagee merely, and he remained subject to the statutory requirement above referred to.

The trial court erred in overruling the objection to the mortgage and note, and for that error the judgment must be reversed. We would infer from the bill of exceptions that the other...