Eldridge v. Grice

• Decision Date: 28 June 1902
• Citation: 132 Ala. 667,32 So. 683
• Parties: ELDRIDGE v. GRICE.
• Court: Alabama Supreme Court

32 So. 683

132 Ala. 667

ELDRIDGE v. GRICE.

Supreme Court of Alabama

June 28, 1902

Appeal from circuit court, Henry county; John P. Hubbard, Judge.

Claim by Mary W. Eldridge, under Code, § 4141, to property levied on under execution in favor of John Grice and against W. T Eldridge. From a judgment for Grice, claimant appeals. Affirmed.

P. A McDaniel, for appellant.

W. O Long, for appellee.

HARALSON J.

This was a suit for the trial of the right of property under the statute.

That the property had been duly levied on is shown by the affidavit for claimant and her claim bond, which estop her to deny a proper levy. Schamagel v. Whitehurst, 103 Ala. 260, 15 So. 611.

The plaintiff introduced the constable, who testified that on the 15th September, 1900, he levied an execution from a justice's court in the county of Henry issued on a judgment therein, in favor of the plaintiff, against the defendant, N. T. Eldridge, and one C. B. Searcy, on the bale of cotton involved in this suit; that at the time of the levy, said cotton was stored in a warehouse in Abbeville, in the name of defendant, Eldridge, to whom a warehouse receipt had issued to the same. Other evidence tended to show that he was in possession of the property.

It is well settled, that in a statutory trial of the right of property, the burden of proof is on the plaintiff, in the first instance, to make out a prima facie case that the property levied on is the property of defendant in execution which burden is discharged when he shows that the defendant was in possession of the property, at the time of the levy, such possession being presumptive evidence of title. The burden then shifts to claimant to overcome this prima facie presumption of ownership in defendant, and to prove ownership in himself. Jones v. Franklin, 81 Ala. 161, 1 So. 199; Jackson v. Bain, 74 Ala. 328; Vaught v. Oehmig, 95 Ala. 306, 11 So. 416.

Another controlling principle is, that the claimant must recover on the strength of his own title, and not on the want or weakness of title in the defendant in execution, nor can he show, to support his claim, a title paramount to that of defendant in a third person a stranger to the proceeding. Formerly the claimant, as was held, "must show a legal title in himself, such as will support an action of detinue for the property, or else fail in his claim suit--the possession of defendant, to whose right the plaintiff succeeds, being superior to a want of both title and possession in himself." Jones v. Franklin, supra; Seisel v. Folmar, 103 Ala. 494, 15 So. 850.

It may be well to add, that under the present statute (Code, § 4141), that any one not a party to the suit, who claims to own an equitable, or a paramount lien, etc., may institute a claim suit to try his right to it at law, as though he had the legal title.

The proof on the part of the claimant tended to show, that the cotton was raised by her. One Murphy testified for her, that he rented a farm and advanced to her money and supplies with which to make a crop on the rented land in 1900, and she made a crop;...