Hill v. Rentz

• Decision Date: 18 April 1918
• Docket Number: 2 Div. 653
• Citation: 201 Ala. 527,78 So. 881
• Parties: HILL v. RENTZ.
• Court: Alabama Supreme Court

78 So. 881

201 Ala. 527

HILL v. RENTZ.

2 Div. 653

Supreme Court of Alabama

April 18, 1918

On Application for Rehearing, May 30, 1918

Response to Application for Rehearing.

Appeal from Circuit Court, Wilcox County; B.M. Miller, Judge.

Claim suit by Walton H. Hill against E.O. Rentz. Judgment for defendant, plaintiff in attachment, and claimant appeals. Reversed, and judgment rendered for claimant.

Godbold & Godbold, of Camden, for appellant.

Bonner & Miller, of Camden, for appellee.

This cause was submitted, and considered under rule 46 of this court (65 South. vii), and the opinion was delivered by Mr Justice MAYFIELD:

Statement of the Case.

This is a claim suit to try the right of property to 15 mules. Appellee attached the mules as the property of his debtor one W.F. Allen; and appellant instituted a statutory claim suit therefor, basing his claim to the property on a mortgage executed by Allen to one J.F. Giddens, and duly assigned by him to appellant. The attachment suit was instituted in the circuit court of Wilcox county after the passage of the statutes consolidating the circuit, chancery, city, and other courts, into the circuit court. The claimant, after interposing his claim as for the attached property, filed a motion, seeking to have the proceeding transferred from the law court to the chancery or equity docket of the circuit court, on the ground that the rights of the parties to the mules, in part at least, depended upon equitable, as distinguished from legal principles. The trial court properly denied this motion, for the reason that, for a long time before the various courts were consolidated, our statutes had allowed equitable titles and defenses to be set up in a court of law, in proceedings like this. Code, § 6039; Ballard v. Mayfield, 107 Ala. 396, 18 So. 29. The issue was then made up as the statute (Code, § 6040) directs; and, no jury being demanded, the issues were tried by the circuit judge as is authorized by statute. The judge found that the property levied upon was that of the defendant in attachment, and was liable to the process, and entered judgment for the plaintiff. From this judgment the claimant prosecutes this appeal.

Opinion.

In statutory claim suits to try the right of property taken under attachment, execution, or other process, the statute directs that the plaintiff in process must allege that the property claimed is that of the defendant in process, and that it is liable to the satisfaction of the process; and the burden of proof as to both of these facts alleged is on the plaintiff. Code, § 6040.

The filing of the claim suit and bond, as is provided for instituting the claim suit, estops the claimant from disputing or questioning the levy, or mere irregularities in the process--matters which do not affirmatively show on their face that the process is void. Bradford v. Bassett, 151 Ala. 520, 44 So. 59. For this reason there was no merit in claimant's objections to the process or levy or to the mode in which they were proven.

The trial court did err, however, in finding for the plaintiff in attachment. There was no proof to show that the property was liable to the satisfaction of the process, as against the rights of this claimant under the mortgage. It is true that the proof showed that the mules, literally speaking, were in Wilcox county when the mortgage was executed, and that the mortgage was never recorded in Wilcox county until after the attachment was levied upon them. This, however, did not render the mortgage void as between the parties thereto. It was just as valid against the mortgagor as if properly recorded in all the counties required by section 3376; but this section does not provide or fix penalties for the failure to so record, nor does it provide for the protection of creditors of, or purchasers from, the mortgagor. Section 3386 of the Code provides for the effect of failure to record mortgages of chattels and, of course, controls in this respect; but section 3376 controls as to the counties in which the mortgages shall be recorded, in order to guard against the provisions of section 3386. Jones v State, 113 Ala. 95, 21 So. 229. While the statutes do provide that chattel mortgages not recorded as directed by law are inoperative against "creditors and purchasers without notice," yet this does not include all creditors, or even all purchasers; the limitation applies expressly to those "without notice." These statutes have also been frequently construed by this court to apply only to subsequent, and not existing, creditors. That is to say, it is not necessary to record such mortgages as against existing creditors, because they cannot be injured by a failure to record; while a subsequent creditor may be. He may have given credit to the mortgagor, acting on the faith and belief that he owned the property, and that it was unincumbered and subject to the payment of his debt. As was said by this court, speaking by Anderson, J., now Chief Justice:

"This statute was intended to protect creditors who deal with the mortgagor

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