Logan v. Smith Bros. & Co.

• Decision Date: 18 November 1913
• Citation: 9 Ala.App. 459,63 So. 766
• Court: Alabama Court of Appeals
• Parties: LOGAN et al. v. SMITH BROS. & CO.

63 So. 766

9 Ala.App. 459

LOGAN et al. v. SMITH BROS. & CO.

Court of Appeals of Alabama

November 18, 1913

Rehearing Denied Dec. 9, 1913

Appeal from City Court of Anniston; Thomas W. Coleman, Jr., Judge.

Action by Smith Bros. & Co., against S.E. Logan and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Blackmon Merrill & Walker and O.M. Alexander, all of Anniston, for appellants.

James F. Matthews, of Anniston, for appellee.

WALKER P.J.

The demurrers to the special pleas raised the question whether a mortgagee of chattels loses the right to maintain detinue for them by having them levied on under an execution issued on a judgment which he recovered on the demand, for the security of which the mortgage was given. It is contended by the appellants (defendants below) that the appellees, by the mere fact of their having the property sued for levied on under execution, waived the right to claim it under the mortgage or estopped themselves to assert such claim. The authorities in this state which are principally relied upon to support this position are the cases of Fuller v. Eames, 108 Ala. 464, 19 So. 366, and Hickman v Richburg, 122 Ala. 638, 26 So. 136. In the first-mentioned case it was held that the plaintiff therein by having chattels attached as the property of the defendant, waived the right to set up a claim that he had retained title to them in himself, and that they had never become the property of the defendant. In the other case it was held that an attempt of the plaintiff to fix a materialman's lien in his favor upon certain lumber was an unequivocal act on his part to treat the lumber as the property of the defendant, and was a waiver and abandonment of a title to the lumber which he had reserved on a conditional sale of it to the defendant. In each of those cases the conduct of the plaintiff which was relied upon as a defense was regarded as wholly inconsistent with the claim which he was asserting in the suit. These rulings would control the result in this case if it is true that one is equally inconsistent who, after having had chattels levied upon under an execution in his favor, sues to recover them under a mortgage to himself. The question, then, is whether the former conduct of the mortgagees is inconsistent with their present claim.

We are referred to decisions in other jurisdictions to the effect that the levy on mortgaged chattels of process for the collection of the debt secured by the mortgage has the effect of an election by the holder of the mortgage, at whose instance the levy is made, to abandon the right or title conferred by the mortgage. The following statement, made in the opinion rendered in one of the cases which is principally relied on, in which the supporting decisions are referred to, indicates the course of reasoning by which this conclusion was reached: "The appellants in this case held the note of Harris, which was secured by a mortgage upon the mule in controversy. The note was past due, and the appellants could have taken charge of the property and sold it, under the power contained in the mortgage, but they elected, instead, to bring suit before a justice of the peace and attach the property. Now, so long as the mortgage lien existed, the mortgagor, Harris, had no interest in the mule subject to attachment, for mortgaged personal property is not subject to execution or attachment for a debt to the mortgagor. *** But appellants had the right to waive their mortgage lien and attach the property. The levy of the attachment amounted to an assertion by appellants that the property was subject to seizure and sale under the attachment. But, as this could not be true if the lien of the mortgage still existed, the levy of the attachment was the same as a denial on the part of the appellants that the mortgaged lien existed, and was in effect a waiver on their part of the lien created by the mortgage. In other words, having sued out an attachment, levied it upon the property in question, and prosecuted the attachment suit to judgment, they must be held to have waived rights which were inconsistent with such a course of procedure. The mortgage lien, being inconsistent with such attachment, was thereby waived, and appellants have nothing upon which to base their action of replevin." Cox v. Harris, 64 Ark. 213, 41 S.W. 426, 62 Am.St.Rep. 187.

The language quoted discloses a view of the effect of a chattel mortgage and of the respective interests in the subject of the mortgage of the mortgagor and mortgagee, and of the remedies available to the latter, which does not prevail in this state. Here, by virtue of a statute (Code, § 4091), the interest known as the equity of redemption which the execution of a mortgage of personal property leaves in the mortgagor is recognized at law so far at least as it is made the subject of levy under process against him. Heflin v Slay, 78 Ala. 182; Bingham v. Vandegrift, 93 Ala. 283, 9 So....