Ivey v. Coston

• Decision Date: 28 June 1902
• Citation: 32 So. 664,134 Ala. 259
• Parties: IVEY ET AL. v. COSTON ET AL.
• Court: Alabama Supreme Court

32 So. 664

134 Ala. 259

IVEY ET AL. v. COSTON ET AL.

Supreme Court of Alabama

June 28, 1902

Appeal from circuit court, Crenshaw county; J. C. Richardson, Judge.

Action by T. E. and J. T. Ivey, executors, against one Hamilton. Judgment for plaintiffs, and execution and levy thereunder and J. W. Coston & Co. file claim to the property levied on as paramount lienors, etc. From a judgment in favor of claimants, plaintiffs appeal. Reversed.

The appellants recovered a judgment against one Hamilton, upon which judgment an execution was issued. This execution was levied upon two mules. Thereupon appellees, J. W. Coston &amp Co., interposed a claim to the mules so levied upon; setting out in their affidavit of claim that the property so levied upon was "not the property of said J. J. Hamilton, * * * but is the property of J. W. Coston & Co., and that affiant has a just claim to the property levied upon." The character of the claim of the claimants, as to whether or not it was under a mortgage or other lien, was not set out in the affidavit. Upon the interposition of this claim, issue was made, and trial was had to determine the right of property between the plaintiffs in execution and the claimants. The plaintiff introduced in evidence the judgment recovered by him against said Hamilton, and the execution issued thereon together with the return of said execution, the return showing levy of the execution upon the property involved in the suit. It was shown by the return of the sheriff that the execution was levied on the property on November 9, 1900. J W. Coston, a member of the firm of J. W. Coston & Co., the claimants, testified that the property involved in the suit had been sold by J. W. Coston & Co. to Hamilton, the defendant in execution, on November 8, 1900, and that, to secure the payment of the purchase price of the property Coston took a mortgage from said Hamilton upon the property so sold to him, and all other property owned by him; that the note which this mortgage was made to secure was made payable on October 1, 1901. The mortgage was introduced in evidence, and contained the following provision in reference to the mules which were sold: "The title of the same to remain in J. W. Coston & Co. until paid for." The witness J. W. Coston further testified that the claimants claimed title to said property by reason of the mortgage, and that the claimants expressly reserved title to the mules until they...