Warren v. Liddell

• Decision Date: 19 May 1896
• Parties: WARREN ET AL. v. LIDDELL ET AL.
• Court: Alabama Supreme Court

20 So. 89

110 Ala. 232

WARREN ET AL. v. LIDDELL ET AL.

Supreme Court of Alabama

May 19, 1896

Appeal from circuit court, Montgomery county; John G. Winter Special Judge.

This was a statutory action of detinue, brought by the appellee Forbes Liddell, doing business as Forbes Liddell & Co. against C. W. Chesson, in the circuit court of Macon county to recover an engine, boiler, cotton press, gin, feeder and condenser, with the fixtures and appliances therewith connected for running the same. The action was transferred by consent to the circuit court of Montgomery county. The property sued for had been purchased by Chesson from the plaintiff in Montgomery, on the 28th of June, 1893. The contract of purchase was in writing, duly executed by and between the parties. The terms of the contract as specified therein were, that the machinery was "to be delivered on the cars at Montgomery, Ala., for the consideration of the payment of twelve hundred and seventy-five dollars, six hundred and thirty-seven 50/100 dollars payable December 1, 1893, six hundred and thirty-seven 50/100 dollars payable November 1, 1894. First payment to be closed by accepted draft on W. I. R. Thompson. Last payment by note. Notes to bear date of bill of lading. Eight per cent. interest from August 1, 1893. The condition of this contract is, that the legal title and right of property in and to the above described property is to remain and to be vested in Forbes Liddell & Co. until said notes and all interest thereon accrued are paid off; and in case the said C. W. Chesson should fail to pay off the amount due by said notes at maturity, or either of them, then and in that event, all of said notes remaining unpaid shall be and are hereby agreed and considered to be due; and it shall be lawful for Forbes Liddell & Co. to take possession of said property above described, at any time after the maturity of said notes which remain unpaid, or may sue, if they see proper, upon all of said notes, as though they were all due, and this agreement shall be their authority for so doing; and all payments, on notes and otherwise, previous to the default in payment of any of said notes, shall be, and are hereby considered to be, in payment for the use and occupation of said machinery. And the said C. W. Chesson forfeits all rights to all previous payments, should he fail to pay any of said notes at maturity, but in case said notes are paid off, then the title to said property to vest in said C. W. Chesson." This contract was never recorded in the probate office of Macon county. The proof showed that the machinery was delivered by plaintiff to defendant in the city of Montgomery, but he did not know where it was to be erected, had never seen it since it left Montgomery, and did not know how it was attached to the land, but he knew when he sold it, that it was to be erected and used for the purposes for which it was sold. It was billed to be shipped to Chesson, Ala. It further appeared, that the second purchase money note was given as provided in the contract, and no part of it had ever been paid, but was still due and unpaid. It was shown that the machinery had been carried to Chesson station in Macon county, and there erected for use, and was operated by said Chesson on land he owned and mortgaged to the claimants, Warren & Co. The manner of its erection, how placed on and affixed to the soil was also shown, and was in such manner, as claimed by the claimants, as would make it fixtures to the soil. Warren & Co., not parties to the detinue suit, instituted suit under section 2717 of the Code, after the property had been seized by the sheriff, claimed the same as their property, and complied with the provisions of the act of February 26, 1889 (Acts 1888-89, p. 57), for the trial of the right of property, and it was delivered to them by the sheriff. It was admitted on the trial: "That prior to and before the machinery in controversy was purchased and placed upon the lands, the claimants (Warren & Co.) held a mortgage upon the lands, on which the said machinery was erected, duly executed by C. W. Chesson (who was the owner of the land) and recorded in the proper office, for a debt then running to maturity. That afterwards, and before the commencement of this suit, the claimants, in consideration of the said mortgage debt, received and took from the said Chesson a deed to the land, in due form, in satisfaction and foreclosure of the mortgage; *** that the deed to the land was given only in foreclosure of the mortgage, no money paid beyond the satisfaction of the mortgage." It was admitted by counsel as a fact, that the purchase was made only in foreclosure and satisfaction of the mortgage debt, and that there was no foreclosure proceedings under the mortgage other than the deed to the land, was made in consideration and satisfaction of the mortgage debt. It further appears, that Chesson was in possession of the land and machinery under rental from, and as the tenant of, the claimants, Warren & Co. The other facts of the case are sufficiently stated in the opinion. Upon the introduction of all the evidence, the court, at the request of the plaintiff, gave the general affirmative charge in his favor; and refused the general affirmative charge requested by the defendants. To each of these rulings the defendants separately excepted. The defendants appeal from the judgment in favor of the plaintiff; and assign as error the several rulings of the trial court to which exceptions were reserved. Affirmed.

W. A. Gunter, for appellants.

Thos. G. & Chas. P. Jones and Edwin F. Jones, for appellees.

HARALSON J.

1. On the trial, an issue was made up, by the plaintiff, by alleging in writing, that the property sued for, and for which a claim was interposed by claimants, was the property of the plaintiff, and liable to seizure under the writ of detinue in the case. To this issue thus tendered, the claimants filed a written joinder, on the same sheet of paper, as follows: "Come the claimants and take issue upon the allegations of the foregoing." When the trial had progressed for some time, on motion of the plaintiff, and against the objection of claimants, the court required the claimants "to propound their claim so as to set out what particular right or title they had to the property, more fully, holding that the issue joined by the claimants on the allegations of the plaintiff was insufficient, and not a compliance with the law." The claimants complied, setting out their claim fully as it was brought out in the evidence, and excepted to the ruling of the court requiring them to do so. In Lehman v. Warren, 53 Ala. 535, the court held, that on a trial of the right of property, the only proper issue is an affirmation by the plaintiff in the process, that the property levied on is subject to the process, and a denial of that fact by claimant. The form of issue on the contest, as was afterwards held, is largely within the discretion of the court, is not subject to demurrer, nor governed by the rules of pleading; and if broad enough to admit any legal evidence as to the validity or invalidity of the claim, in whole or in part, on grounds specified in the affidavit of contest, it is substantially sufficient. Shahan v. Herzberg, 73 Ala. 59. As was said in the case in 53 Ala., it was never intended that the proceeding should be embarrassed by formal pleadings, which tend to confuse and mar their simplicity. It was added: "The affidavit serves its purpose, when with a proper bond by the claimant, it arrests the action of the officer, and introduces the claim into court, as a pending suit. Its statements can neither enlarge nor narrow the issue, which the statute requires to be made up, and it is not probably required for any other reason than as an affirmation of the good faith of the claimant in instituting the proceeding." If such pleadings are introduced, the trial may be had as if the issue had been in conformity with the statute. The act of February 26, 1889 (Acts 1888-89, p. 57), provides, that the same proceedings shall be had, for the trial of the right of property seized in detinue suits, when claimed by one not a party to the suit, as in other trials of the right of property. The issue tendered by the plaintiff in this case was such as is usual in such cases, and all that the law required. The claimants joined the issue tendered, and the demand of the plaintiff, thereafter, and the order of the court, that they should, in joining issue, go into the details of the evidence of their claim, as they expected to establish it, was more than the law required, and was not in conformity with the well understood rules of practice in such cases. This was done for the further satisfaction of plaintiff's counsel, in discharging the burden on plaintiff to establish his title to the property levied on. The claimants might, for as good reasons, have demanded that he should have presented an issue with a detailed statement of the evidence on which he relied to make out his case. It is well in such cases, to adhere to the statutory requirements in making up such an issue. But, the court by this order, did not change the burden of proof. It was still on plaintiff. Nor does it appear, that the claimants were trammeled in the prosecution of their claim by this requirement of the court. They made all the proof, or were entitled to do so, as if this requirement had not been made of them, and no possible injury resulted to them therefrom. So, it was, at most, error without injury.

2. The rights of the seller, Forbes Liddell & Co., and of the purchaser of the machinery, Chesson, are fixed by the contract between them, and it is, therefore, a matter of law for the court, in the construction of the instrument, to...