Fields v. Williams

• Decision Date: 30 January 1891
• Citation: 8 So. 808,91 Ala. 502
• Parties: FIELDS ET AL. v. WILLIAMS.
• Court: Alabama Supreme Court

8 So. 808

91 Ala. 502

FIELDS ET AL. v. WILLIAMS.

Supreme Court of Alabama

January 30, 1891

Appeal from circuit court, Blount county; JOHN B. TALLY, Judge.

Action by W. R. Williams against A. R. Fields, A. L. Henderson, W C. Cornelius, and James M. Wikle, to recover damages for the wrongful levying of an execution upon and taking a pair of mules, a wagon, and two cows. Defendant Fields had recovered before a justice of the peace a judgment against one Fortenberry, and placed the execution issued thereon first in the hands of defendant Cornelius, who was acting constable and then in the hands of defendant Henderson, regular constable, and caused the same to be levied on the property in controversy. Defendant Wikle was surety on the bond of indemnity given by defendant Fields to defendant Henderson. Defendants requested the court to give the following and other written charges, and separately and severally excepted to the refusal to give each one as asked: "(1) Under the laws of this state, where personal property is conditionally sold, and title reserved in the vendor until the purchase money is paid by the purchaser, the property is the subject of levy and sale under execution to the extent of the interest of the purchaser in the property while the same is in his possession and under his control; and if the jury believe from the evidence that only such interest as Fortenberry had in the property was sold by the constable when he made the alleged sale of the cows, and that such sale of the cows was made subject to the interest of Williams in the same, then the plaintiff, Williams, cannot recover in this action on account of the sale. (2) Under the laws of this state, personal property sold with a reservation of title in the seller until the purchase money is paid by the purchaser is the subject of levy and sale under execution to the extent of the interest of the conditional purchaser while the property is in his possession or under his control while the purchase money remains unpaid. (3) If the jury believe from the evidence that the plaintiff, Williams, caused the cows to be purchased for himself at the alleged execution sale, and thus acquired possession of the said cows, he cannot recover in this action on account of the levy made on said cows so purchased for himself. (4) The measure of damages in this case for the alleged trespass in levying on the cows is the amount that plaintiff, Williams, paid for said cows at the sale thereof under the alleged levy. (5) If the jury believe the evidence in this case, they should find for the defendants. (6) The measure of damages in this case on account of the levy alleged to have been made on the mules and wagon is the injury done to the same by the defendants, if any was done, together with such amount as the jury may conclude the plaintiff was injured by being deprived of the possession of the same by defendants, if they find from the evidence that he was so deprived of such possession. (7) Unless the jury find from the evidence in this case that the plaintiff, Williams, was in the possession of the property alleged to have been levied on by the defendants at the time of the levy, then plaintiff is not entitled to recover in this action, unless the jury find from the evidence that before the alleged levy was made the plaintiff, Williams, had made known to Fortenberry his purpose to treat the alleged conditional sale at an end." Following the verdict of the jury, the court rendered judgment for one amount against defendant Fields, and for another and different amount against defendant Henderson, and rendered judgment in favor of the other two defendants. Defendants appeal.

Inzer & Ward and Dickinson & Hall, for appellants.

CLOPTON J.

Fields one of the defendants, having obtained judgment before a justice of the peace against Fortenberry, caused an execution issued thereon to be levied on the property in the complaint mentioned, for the wrongful taking of which the action is brought by appellee. This and other property was sold by plaintiff January 10, 1888, to Fortenberry, for the sum of $281.50, who executed an instrument in writing, by which he agreed to pay the price by the 1st day of November, 1888. The instrument provided that the title to the property should remain in plaintiff until paid for. There being an express stipulation in the contract of sale that the title should not pass until the property was paid for, the transaction was a conditional sale. Sumner v. Woods, 67 Ala. 139. The property having been delivered to Fortenberry under the contract of purchase, and being in his possession at the time of the...