Henley v. Bradshaw Mercantile Co.

• Decision Date: 07 November 1929
• Docket Number: 4 Div. 444.
• Parties: HENLEY v. BRADSHAW MERCANTILE CO.
• Court: Alabama Supreme Court

124 So. 426

220 Ala. 193

HENLEY v. BRADSHAW MERCANTILE CO.

4 Div. 444.

Supreme Court of Alabama

November 7, 1929

Appeal from Circuit Court, Covington County; E. S. Thigpen, Judge.

Trial of the right of property between the Bradshaw Mercantile Company, plaintiff in attachment, and L. W. Henley, claimant. From a judgment for plaintiff, claimant appeals. Transferred from Court of Appeals under Code 1923, § 7326. Reversed and remanded.

A. R Powell, of Andalusia, for appellant.

Baldwin & Murphy, of Andalusia, for appellee.

BROWN J.

This is a trial of the right of property levied upon under writ of attachment sued out by a simple contract creditor. The property involved is a Chevrolet truck, originally purchased by the claimant, appellant here, from the Covington Motor Company, as we assume, under a conditional sale contract though no such contract was offered in evidence.

Subsequent to the purchase of the truck by claimant, he sold it, with the consent of the Covington Motor Company, to the defendant for $100 evidenced by notes, and the assumption of the payment of the balance due on the purchase price to the Covington Motor Company, without any obligation or agreement of the Covington Motor Company to release claimant from liability. This much is undisputed. It further appeared from evidence offered by the plaintiff, that at the time of the levy the property was in defendant's possession. This, under our repeated rulings, made a prima facie case for the plaintiff, carrying to the claimant the burden of showing title and right to possession. Jones v. Franklin, 81 Ala. 161, 1 So. 199; Jackson v. Bain, 74 Ala. 328; Eldridge v. Grice, 132 Ala. 667, 32 So. 683; McDonald v. Stephens, 204 Ala. 359, 85 So. 746.

To shoulder and carry this burden, the claimant offered evidence tending to show that, prior to the time the property was levied upon, the defendant sold and delivered the property back to the claimant in satisfaction of the debt contracted by the defendant in the purchase of the truck, and then and there entered into an agreement with the claimant to hire the truck and a shingle mill, also resold to claimant by the defendant in the same transaction, agreeing to pay 20 per cent. of the earnings of said mill as rent for the mill and truck.

And, in rebuttal to this evidence, plaintiff offered evidence tending to show that nothing was said about such rental agreement at the time of the levy, and that subsequent to the levy claimant merely claimed the property under the unrecorded note, which retained a lien thereon for the payment of the...