Warren v. Jones

• Decision Date: 21 March 1929
• Docket Number: 4 Div. 410.
• Citation: 219 Ala. 213,121 So. 519
• Parties: WARREN v. JONES.
• Court: Alabama Supreme Court

121 So. 519

219 Ala. 213

WARREN v. JONES.

4 Div. 410.

Supreme Court of Alabama

March 21, 1929

Rehearing Stricken April 18, 1929.

Appeal from Circuit Court, Barbour County; J. S. Williams, Judge.

Action of unlawful detainer by N. I. Jones against G. G. Warren. From a judgment for plaintiff on appeal from the justice court, defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326. Reversed and remanded.

Sollie & Sollie, of Ozark, and G. W. Winn, of Clayton, for appellant.

W. H Merrill, of Eufaula, and G. Ernest Jones, of Birmingham, for appellee.

GARDNER J.

This is an action of unlawful detainer brought by appellee against appellant to recover 40 acres of land. It originated in the justice court, which has original jurisdiction of such suits (Leatherwood v. Suggs, 96 Ala. 383, 11 So. 415) and, from a judgment for plaintiff, defendant appealed to the circuit court. The trial upon appeal likewise resulted in a judgment for the plaintiff, and defendant prosecutes the present appeal to review the rulings of the court in giving for the plaintiff the affirmative charge and rejecting evidence offered by defendant.

Plaintiff became the purchaser of the property at execution sale, under judgment in favor of one Watson against G. G. Warren, and rests her right of recovery in this character of action upon the provisions of section 10157, Code of 1923. For proof as to the foundation of her right, plaintiff relied upon the introduction in evidence of the sheriff's deed and a recorded certificate of the judgment. The recitals of the sheriff's deed were not sufficient to make out plaintiff's right or title, but it was necessary to make independent proof of the judgment, execution, and levy. This is the holding of our cases. Gordon v. Bell, 50 Ala 213; Ayers v. Roper, 111 Ala. 651, 20 So. 460; Hendon v. Delvichio, 137 Ala. 594, 34 So. 830; Brightman v. Merriwether, 121 Ala. 602, 25 So. 994.

In Weaver v. Brown, 87 Ala. 533, 6 So. 354, cited by appellee, the judgment was offered and admitted in evidence, and nothing in that authority is contrary to the conclusion here reached.

Nor will the recorded certificate suffice as a substitute for the introduction of the judgment. The registration is only intended to have the effect of an execution in the hands of the sheriff as an instrumentality of creating and preserving a lien in the county where recorded on the property of the defendant subject to levy and sale. Manchuria S. S. Co. v. Harry G. G. Donald & Co., 200 Ala. 638, 77 So. 12; Jefferson County Savings Bank v. Ben F. Barbour Plumbing & Electric Co., 191 Ala. 238, 68 So. 43.

It is not the judgment itself, and cannot be said to serve as a substitute therefor. The judgment was the foundation of plaintiff's claim, and its absence was fatal to her right of recovery. The court therefore erred in giving for the plaintiff the affirmative charge requested.

This error suffices for a reversal of the cause, but we think something more should be said touching the merits of the case.

The above-noted statute, upon which plaintiff relies for recovery, is new to the present Code. The exigencies of this case do not require a consideration of its full scope and effect or field of operation. It is confined by its language to "any right to possession, acquired by virtue of this chapter," which chapter deals only with the question of the exercise of the statutory right of redemption. Plaintiff evidently based her action upon section 10143, which provides for delivery of the land to the purchaser by the debtor, if in possession, or in possession of any one holding under him by privity of title. Ensley Mortgage Co. v. Lewis, 193 Ala. 226, 68 So. 1012. Defendant held no mortgage or lien, but a warranty deed from G. G. Warren, dated in January, 1922. He was in possession as a purchaser. The sheriff's deed of January 19, 1925, discloses a sale of the property on that day under execution issued against G. G. Warren, but the certificate of the judgment was recorded in August, 1921. By way of defense, defendant offered to show that his purchase was from G. G. Warren, and that in part payment of the purchase price he paid the indebtedness due under two separate mortgages on this property, both of which antedated the judgment-aggregating about $800-and another indebtedness due by said G. G. Warren of $105; that at the time of this purchase the property constituted a part of the homestead of the grantor, was less in area than 160 acres, and less in value than $2,000. The purpose, of course, was to show that, as exempt property, not subject to levy and sale under execution, creditors could not complain of its disposition. First National Bank v. Browne, 128 Ala. 557, 29 So. 552, 86 Am. St. Rep. 156; Fuller v. Whitlock, 99 Ala. 411, 13 So. 80. This evidence was rejected by the court upon the theory that in actions of unlawful detainer there can be no inquiry into the estate or merits of the title. Section 8012, Code of 1923; Hill v. Harris, 179 Ala. 614, 60 So. 917, Washington v. Spriggs, 213 Ala. 622, 105 So. 811.

We have here given an outline of the case for the purpose of demonstrating that in our opinion section 10157 of the Code cannot be properly construed as applicable to a case of this character, this for the reason that the plaintiff's only claim, resting as it does upon an execution sale and not upon any relation whatever with defendant or upon any possessory right otherwise, is one of title. Defendant had been in possession under claim of ownership for some years...