Shows v. Brantley

• Decision Date: 23 June 1900
• Citation: 28 So. 716,127 Ala. 352
• Parties: SHOWS v. BRANTLEY.
• Court: Alabama Supreme Court

28 So. 716

127 Ala. 352

SHOWS v. BRANTLEY.

Supreme Court of Alabama

June 23, 1900

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

Detinue by T. W. Shows against J. G. Wilkins and others, in which T K. Brantley intervened. From a judgment in favor of intervener, plaintiff appeals. Reversed.

The appellant, T. W. Shows, brought an action of detinue against J. G. Wilkins, R. H. Wilkins and Mariah Wilkins, to recover possession of 75 bushels of corn and 500 pounds of fodder. After the property sued for had been seized by the sheriff under a writ of detinue, the appellee, T. K. Brantley interposed his claim thereto, and upon the interposition of this claim, the statutory trial of the right of property was instituted, between Shows and Brantley. The facts adduced on the trial of the case are sufficiently stated in the opinion.

Upon the introduction of all the evidence, the court, at the request of the claimant, gave the general affirmative charge in his behalf, and refused to give the general affirmative charge in favor of the plaintiff, which was requested by him. To each of these rulings the plaintiff separately excepted. There were verdict and judgment for the claimant. The plaintiff appeals, and assigns as error the giving of the general affirmative charge requested by the claimant and the refusal to give the general affirmative charge requested by the plaintiff.

Rushton & Powell, for appellant.

Bricken & Bricken, for appellee.

HARALSON J.

This suit, as appears, was by the plaintiff to recover possession of 75 bushels of corn and 500 pounds of fodder, and was instituted against J. G. and R. H. Wilkins and Mariah Wilkins. He gave bond as provided under the statute for the purpose, and the sheriff, as directed by the clerk, levied on the property in the possession of defendants, and took the same into his possession.

The claimant, T. K. Brantley, by his attorney made an affidavit stating that the property had been levied on as the property of J. G. and Mariah Wilkins, and that it was not the property of said J. G. and Mariah Wilkins, but was the property of T K. Brantley, the claimant. The claim bond made the same recitals as to the property having been levied on as the property of J. G. and Mariah Wilkins.

The burden was on the plaintiff to show, that at the commencement of the suit, the defendants had the possession of the property sued for (3 Brick. Dig. p. 307, § 16); and this was done in this case. Formerly, when a trial of the right of property was not recognized in an action of detinue on a claim by a stranger, as is at present allowed, if the plaintiff in an action of the kind had never had the actual possession, he was required to show that he had the legal title in order to recover. Jackson v. Rutherford, 73 Ala. 155; Russell v. Walker, Id. 315. But, under the present statute (Code, § 1064), the mortgage of an unplanted crop, executed on or after the 1st day of January of the year in which such crops are grown, conveys the legal title thereto, as if such crops had already been planted. Prior to the adoption of that section, the statute (Acts 1886-87, p 150; Code, § 4141) provided that the trial of the right of property should include any person who held a lien or equitable title to such property, and a mortgagee of an unplanted crop, had such title as authorized him to interpose a claim to, and try his right thereto, as though he owned the legal title. Ballard v. Mayfield, 107 Ala. 396, 18 So. 29; Guano Co. v. Ballard, 107 Ala. 710, 19 So. 777. The plaintiff in this case proved, that his mortgage on the crops of 1898, raised on said lands, and a part of which was found and levied on while in the possession of defendants, was executed on the 4th of January, 1898, and was recorded on the 7th of that month. He also proved that the mortgage debt was still due and unpaid. This proof entitled him...