Stuart v. Mitchum

• Decision Date: 05 February 1903
• Citation: 135 Ala. 546,33 So. 670
• Parties: STUART v. MITCHUM.
• Court: Alabama Supreme Court

33 So. 670

135 Ala. 546

STUART v. MITCHUM.

Supreme Court of Alabama

February 5, 1903

Appeal from circuit court, Morgan county; H. C. Speake, Judge.

Action by J. B. Stuart against J. M. Mitchum. Plaintiff had judgment, on which execution issued, and was levied on certain property as the property of the defendant. Afterwards J. T. Mitchum interposed a claim to the property, and trial of the claim was had, and judgment rendered in favor of claimant. Plaintiff appeals. Reversed.

This was a statutory trial of the right of property. The appellant, J. B. Stuart, recovered a judgment against J. M Mitchum. Upon this judgment, execution was issued, which was levied upon property as the property of J. M. Mitchum. After the levy of the execution upon said property, a claim to the property so levied upon was interposed by the appellee, J. T Mitchum. Upon the interposition of this claim, a trial was had upon issues made up under the direction of the court. The plaintiff introduced evidence tending to show that at the time of the levy of the execution the defendant, J. M Mitchum, was in the possession of said property, using it as his own, and further introduced evidence tending to show that the property so levied upon was the property of the defendant in execution. The claimant introduced evidence which showed that in January, 1896, J. M. Mitchum executed to him a mortgage upon the property involved in the suit, together with some horses and a wagon and other property; that this mortgage was executed in Lauderdale county, where the property was at that time situated; that subsequently the property included in said mortgage was removed to Limestone and Morgan counties; that after the removal of said property in, to wit, March, 1896, J. M. Mitchum executed to McEntire Bros. a mortgage upon the same property which he had previously mortgaged to J. T. Mitchum; that subsequent to the execution of the mortgage to McEntire Bros., to wit, in April, 1896, J. M. Mitchum executed to J. T. Mitchum a bill of sale of the property included in said mortgage; that after the law day of McEntire Bros.' mortgage had passed, there was an agreement entered into between J. T. Mitchum and McEntire Bros. by which McEntire Bros.' mortgage was to be foreclosed, and at the foreclosure sale McEntire Bros. were to become the purchasers of the horse and wagon included in said mortgage, and the said J. T. Mitchum was to become the purchaser of the engine, boiler, and saw, the property involved in the present suit; that this agreement was brought about by reason of the fact that the mortgage to J. T. Mitchum, the claimant, had never been recorded in either Limestone or Morgan county, where the property had been removed; that, in accordance with this agreement, McEntire Bros.' mortgage was foreclosed, and McEntire Bros. became the purchasers of the horse and wagon, etc., and J. T. Mitchum, through his agent, one A. J. Brown, became the purchaser of the property involved in the present suit; that there was no money paid by either of the parties purchasing at the foreclosure sale, but that McEntire Bros. marked their mortgage "Satisfied," and that it was expressly understood that the claimant, J. T. Mitchum, was not to be paid anything, but he delivered to McEntire Bros. his mortgage. The facts relating to the ruling of the court upon the objection of the plaintiff to the testimony of D. W. Speake, Esq., as to the loss and proof of the contents of the mortgage and bill of sale from J. M. Mitchum to J. T. Mitchum, are sufficiently stated in the opinion. The plaintiff introduced John T. Banks, who was the justice of the peace before whom the original suit by the plaintiff was instituted, and he was asked the following question: "If he remembered the paper that was produced before him at the trial of this cause as a bill of sale, and as to a question being raised as to whether it was a bill of sale or a mortgage?" Upon the witness answering that he did remember it, he was then asked the following question: "Whether it was a bill of sale or mortgage?" The claimant objected to the question, the court sustained the objection, and the plaintiff duly excepted. The court, at the request of the plaintiff, gave to the jury several written charges. The court also refused to give several written charges requested by the plaintiff, among which was the following: "(4)...