Pilcher v. Hickman

• Decision Date: 13 February 1902
• Parties: PILCHER v. HICKMAN.
• Court: Alabama Supreme Court

31 So. 469

132 Ala. 574

PILCHER v. HICKMAN.

Supreme Court of Alabama

February 13, 1902

Appeal from circuit court, Henry county; John P. Hubbard, Judge.

Action by T. B. Hickman against J. M. Pilcher. Judgment for plaintiff, and defendant appeals. Reversed.

W. O Lang, for appellant.

Espy Farmer & Espy, for appellee.

TYSON J.

Action of trover, originally commenced against sheriff and purchaser at execution sale. The complaint was amended by striking out the purchaser as party defendant, and judgment was obtained against the other defendant, who prosecutes this appeal.

The evidence shows, without dispute, that the execution was regular on its face, and issued out of the circuit court of Henry county, and that it was levied upon the mule found in the possession of the plaintiff's father, who was the defendant in execution; that the mule had been in his possession ever since the plaintiff claims to have owned it,--some 10 or 12 months. After the levy, the defendant in this suit took possession of the mule, and sold it under the execution, as the property of the defendant in the writ. It was admitted by plaintiff that he saw the mule being taken under the writ from the possession of his father, and was present when it was sold under the execution. There was no evidence that the sheriff had any knowledge of the plaintiff's claim to the mule, or that plaintiff gave him any notice whatever of his claim. We have noted the fact of the knowledge of the plaintiff of the levy and sale, not for the purpose of working out an estoppel against him in this action against the sheriff, but simply to show that he had the opportunity of giving notice that the mule was his, and at least presumptively showing that the sheriff had no knowledge of his claim, but relied upon the father's possession as evidence of his ownership. Whether his conduct would work an estoppel against him, as against the purchaser we need not and do not decide. Having found the mule in the possession of the father, the defendant in execution, the sheriff had the right, in the absence of knowledge or information to the contrary, to presume that he was the owner of it, and it was his duty to levy upon it as the property of such defendant (Murfree, Sher. § 963); and, of course, it was his duty to sell it, unless he came into the possession of a knowledge of facts before the sale which, if followed up would have disclosed that the property did...