Sauls v. Leath

• Decision Date: 05 November 1925
• Docket Number: 7 Div. 585
• Citation: 106 So. 133,213 Ala. 664
• Parties: SAULS v. LEATH et al.
• Court: Alabama Supreme Court

106 So. 133

213 Ala. 664

SAULS v. LEATH et al.

7 Div. 585

Supreme Court of Alabama

November 5, 1925

Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge.

Action by Roy Sauls against R.A. Leath and the National Surety Company. From a judgment for defendants, plaintiff appeals. Transferred from Court of Appeals under Code 1923, § 7326 Affirmed.

Goodhue & Lusk, of Gadsden, for appellant.

Motley & Motley, of Gadsden, for appellees.

SAYRE J.

Appellant sued appellees, sheriff and the surety on his official bond in trespass and trover. Appellant's contention was that defendant sheriff had levied an execution on his property to satisfy the debt of his father, A.C. Sauls.

Pleas 3 and 4 were not subject to the demurrers leveled against them. These pleas allege (plea 3) that "said property was subject to levy and sale under the said execution and judgment," and (plea 4) that the plaintiff in execution "had a lien on said property, and the same was liable to the execution levied." The quoted allegations are conclusions of the pleader, but they are conclusions, and proper conclusions, from the facts previously alleged, viz facts showing in short, that plaintiff in execution had a lien by virtue of a recorded judgment under the statute in such cases made and provided. There is no reason why a pleader should not draw his conclusion from the facts alleged--where the facts admit of different conclusions, it is necessary that the pleader conclude--provided he draws the correct conclusion, as defendants did.

Plaintiff's case was that he had purchased the property levied upon from the bank to which his father, defendant in execution subsequent to the recorded judgment alleged in pleas 3 and 4 had sold it in satisfaction of an old debt. Defendants insisted that the transaction between the bank and the defendant in execution was simulated, and it cannot be said there was no evidence to warrant a conclusion in agreement with this contention. In these circumstances the burden rested upon plaintiff to show that, in the transaction by which the bank--and, through the bank, plaintiff--claimed to have acquired title from the defendant in execution, the consideration paid was both valuable and adequate. Chipman v. Glennon, 98 Ala. 263, 13 So. 822; London v. Anderson Brass Works, 197 Ala. 16, 72 So. 359. The special instruction shown in the third assignment of error was properly given at the request of def...