Tait v. Murphy

• Decision Date: 12 May 1887
• Citation: 2 So. 317,80 Ala. 440
• Parties: TAIT v. MURPHY.
• Court: Alabama Supreme Court

2 So. 317

80 Ala. 440

TAIT v. MURPHY.

Supreme Court of Alabama

May 12, 1887

Appeal from circuit court, Clarke county.

Statutory trial of the right of property.

John F Murphy recovered judgment against J. W. Barron and H. E. Tait in the circuit court of Clarke county, and sued out execution thereon on November 24, 1885, which was levied on the following property by the sheriff of said county, viz "Four yokes oxen, Lamb and Will, Buck and John, Dick and Tom, and Brandy and Ball; one front and one tail cart, and one broken front cart." On March 5, 1886, William R Tait, appellant, made his claim as provided by statute for said property, and an issue was thereupon made in said circuit court between said J. F. Murphy, plaintiff in execution, and said W. R. Tait, claimant. Upon the trial of said cause, the verdict and judgment were: "We the jury find one-half of the property levied on subject to the execution, and assess the value of said one-half at one hundred and fifty dollars. *** It is therefore considered by the court that one-half of the property levied on in this case be condemned to the satisfaction of the plaintiff's debt."

In addition to the facts set forth in the opinion of the court the bill of sale therein mentioned was introduced in evidence, as follows:

" State of Alabama, County of Clarke. Know all men by these presents that I have this day sold, bargained, and conveyed to W. R. Tait, for and in consideration of the sum of four hundred and fifty dollars in hand paid, receipt of which is hereby acknowledged, the following described personal property: Four (4) yoke of oxen now used by me as a timber team, two (2) front carts, and one (1) tail cart, to have and to hold as his property.

"Executed at Choctaw Bluff, Clarke county, Ala., this first day of March, 1887.

[Signed]

H. E. TAIT."

And the evidence tended to show, on the part of claimant, that the consideration on which the bill of sale was made by H. E. Tait to him was a debt of H. E. Tait to him of some $500 previously incurred, and that he took the property conveyed to him by the bill of sale in payment of this debt, thinking the same was worth $450. The evidence also tended to show what each of said articles claimed were worth.

Among other things, the court, in the general charge to the jury, said: "And the court also charges the jury that they should determine from the evidence whether, if the property levied upon did not belong exclusively to H. E. Tait, it belonged to the firm of Tait & Tait; and, if they found it did so belong to Tait & Tait, then they must find that one-half of it was subject to the plaintiff's execution." To which charge the claimant excepted.

The claimant, in writing, asked the court to charge the jury as follows, which the court refused to do as to each charge, and the claimant excepted to such actions of the court: "(1) If the jury believe the evidence, they must find for the claimant, Wm. R. Tait. (2) There is no evidence tending to show that any part of the property belonged to Tait & Tait, and the jury cannot so find. (3) Even if the jury believe from the evidence that any part of the property levied on was acquired by Wm. R. Tait under the bill of sale, yet if the unimpeached and uncontradicted evidence shows that the bill of sale was to pay and did pay, at a fair valuation, to Wm. R. Tait, a debt due from H. E. Tait to him, it is immaterial whether H. E. Tait, in paying said debt, designed to defraud Murphy, and whether William R. Tait participated in any such design."

Pillaus, Toney & Hanaw, for appellants.

J. W. Portis and S. J. Cummings, contra.

CLOPTON J.

The issue joined on the trial is whether the oxen and carts levied on are subject to plaintiff's execution. The plaintiff claimed that they were the property of H. E. Tait one of the defendants in execution, and that he had fraudulently sold and conveyed...