Johnson v. New Enterprise Co.

• Citation: 50 So. 911,163 Ala. 463
• Parties: JOHNSON v. NEW ENTERPRISE CO.
• Decision Date: 16 December 1909
• Court: Supreme Court of Alabama

50 So. 911

163 Ala. 463

JOHNSON v. NEW ENTERPRISE CO.

Supreme Court of Alabama

December 16, 1909

Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.

Action by J. B. Benson, doing business as the New Enterprise Company, against J. L. Jay and another, doing business as the Farmers' & Merchants' Warehouse, in which D. J Johnson interposed a claim to the property. From a judgment for plaintiff, claimant appeals. Affirmed.

The plaintiff claimed under a mortgage executed to it by one E B. Hughes in January, 1907, conveying the crops raised by him during that year. It was shown that the cotton was raised by Hughes and placed in the warehouse of defendant, on whom demand was made before suit was brought for the possession of the cotton. It was shown that E. B. Hughes raised the cotton rented the land on which the cotton was raised from D. J Johnson, and a mortgage was given by Hughes to Johnson in January, 1907; but it fails to appear that the Johnson mortgage was recorded, though the mortgage given the New Enterprise Company was recorded. The contention of the claimant was that his landlord lien was superior to any outstanding mortgage or other liens.

Espy & Farmer, for appellant.

W. L. Lee, for appellee.

McCLELLAN J.

Counsel, in briefs, have reduced the controlling inquiry on this appeal to the single question: May a landlord lienor be a claimant in a trial of the right of property, and prevail thereupon, in an action of detinue instituted by an holder of the legal title, conveyed by mortgage, of crops grown upon the rented premises? As appears, the inquiry involves a construction of Code 1907, §§ 3792, 6039.

The latter section (6039) contains the statute as written in the Code of 1886 and also the amendment thereof by the act approved February 28, 1887 (Acts 1886-87, p. 150), by which it was enacted that the "right of the trial to property shall [should] include any person who holds a lien upon or equitable title to such property." Theretofore, of course, the right to try the property in the personalty did not extend to lienors thereof or to those possessing equities therein. With this status existing, the former statute (section 3792) was enacted in 1889 (Acts 1888-89, p. 57), and became section 1484 of the Code of 1896. By the letter of section 6039, it applies only to personal property levied on under writs of execution or of attachment. In the last phrase of section 3792 it is provided: "And thereupon the same proceedings must be had as in other trials of the right of property." Accordingly, the final inquiry, on construction looking to the ascertainment of the legislative intent, is whether the quoted provision effected to confer upon a lienor or equitable claimant of personal property, for the recovery of which an action of detinue has been instituted, the right to invoke the court's determination of the rights thereto between the plaintiff and such lienor or equitable owner?

So far as the letter of the statute is concerned, it is apparent that "proceedings" is the key word in the statute on this occasion. If that word was employed with the purpose of expressing the legislative intent to confer on lienors or equitable owners the substantive right of contest created after the amendment, made in 1887, of the trial of the right of property statute, then, and of course, the court below ruled incorrectly in denying appellant the right to contest,...