Hendon v. McCoy

• Decision Date: 19 March 1931
• Docket Number: 6 Div. 850.
• Citation: 133 So. 295,222 Ala. 515
• Parties: HENDON v. MCCOY ET AL.
• Court: Alabama Supreme Court

133 So. 295

222 Ala. 515

HENDON v. MCCOY ET AL.

6 Div. 850.

Supreme Court of Alabama

March 19, 1931

Appeal from Circuit Court, Walker County; R. L. Blanton, Judge.

Trial of the right of property between J. V. McCoy and D. H. McCoy partners composing the firm of McCoy Bros. Machine Company plaintiffs in execution, and T. S. Hendon, claimant. From a judgment for plaintiffs, claimant appeals. Transferred from Court of Appeals.

Affirmed.

Davis &amp Curtis, of Jasper, for appellant.

Pennington & Tweedy, of Jasper, for appellees.

FOSTER J.

This is a statutory trial of the right of property on which an execution was levied. The court found and adjudged that defendant in execution was the owner of a leasehold interest in it, that such interest was subject to sale under the execution, and ordered it sold for its satisfaction. But the judgment did not assess the value of the property. The law requires that this be done when practicable, and that the failure to do so is error to reversal. Section 10377, Code; Tait v. Murphy, 80 Ala. 440, 2 So. 317; Townsend v. Brooks, 76 Ala. 308.

In the case of Massillon E. & T. Co. v. Arnold, 133 Ala. 368, 32 So. 594, there was a situation somewhat similar. There was a claim suit involving a "sawmill, consisting of boiler, engine, and fixtures." With some similarity to the instant case, in that one, the verdict found "the issue in favor of the plaintiff for the property described, as per agreement." It was said that, as the record did "not contain a copy of the agreement, and nothing to the contrary appearing, we feel safe in indulging the presumption that it covered the very defect in the verdict, if it exists, now insisted upon." The court further presumed that the agreement was carried into the terms of the verdict relating to the assessment of the value of the property. In this case the property consists of a locomotive, pump, washer, tools, fixtures, attachments, and equipment. The judgment recites that there was an agreed statement of facts. We think that it is within the principles asserted in Massillon E. & T. Co. v. Arnold, supra.

We note other instances when it will be presumed in order to support a judgment that there was an agreement that such a judgment be entered. Robinson v. Starnes, 137 Ala. 438, 34 So. 686; Barton v. Charter Gas Engine Co., 154 Ala. 275, 45 So. 213.

The rule is well settled that, in the absence of a bill of exceptions, the court will presume the existence of any state of evidence which will support the judgment. Illinois C. R. Co. v. Posey, 212 Ala. 10, 101 So. 644; McGee v. Freeman, 212 Ala. 31, 101 So. 644.

But it is contended that there may not be a so-called leasehold interest in personal property held by a defendant in execution subject to sale under its provisions. Subdivision 2 of section 7806, Code, declares that there shall be subject to execution personal property of defendant whether he has the absolute title or the right to possession for life or for a shorter period; but not when his possession is acquired by a bona fide hiring of chattels. The judgment recites that defendant has a leasehold interest under a written lease. None of its terms are stated.

The interest of a lessee of real estate has been held subject to levy on process issued to collect a debt. McCreery v. Berney Nat. Bank, 116 Ala. 224, 232, 22 So. 577, 67 Am. St. Rep. 105.

The word "lease" is generally used with particular reference to real estate, resulting in the relation of landlord and tenant. 5 Words and Phrases, First Series, page 4043.

But, when applied to personal property, it properly results in the relation of bailor and bailee. 5 Words and Phrases, First Series, page 4045; Cadwallader v. Wagner, 7 Kulp (Pa.) 465.

We understand, therefore, that the leasehold interest mentioned in the judgment is of the nature of that interest which is possessed by a bailee of personal property.

Our statute makes the following interests in personal property subject to execution: (1) Absolute ownership; (2) the right to its possession for life; (3) the right to its possession for a period shorter than life. Then by way of further characterization makes it clear that a mere hiring of chattels may not be sold under execution. We are not here concerned with classes 1 and 2 above. But the hiring of a chattel carries with it the right to possession for a period shorter than life. We therefore find that class 3 and the exception overlap. Our concern is to give them both a field of operation. We find that we can do so by holding that such interest of a bailee for a term is subject to execution if it is assignable without the consent of the bailor....