Hammond v. White

SAYRE, J. Plaintiff White recovered judgment against one Burney in March, 1924. This judgment was recorded in the office of the judge of probate in April. October 3, 1924, execution was issued and levied on a hale of cotton as the property of the defendant in execution. Appellant interposed a claim, and a trial of the right of property followed. The trial was had before the' court and without a jury. . ; Burney was a .tenant on claimant’s land during 1924, and the bale of cotton in controversy in this suit was raised on that land by Burney during that year. Appellant now claims right and title in virtue 'of- his lien as landlord. At the trial he darkened counsel by introducing a mortgage which antedated plaintiff’s judgment; but the mortgagee named in the instrument was an outsider, and claimant had joined in its execution and in the notes secured by it for the purpose, as the evidence disclosed, of becoming surety for the tenant’s debt to- the mortgagee. His testimony showed further that he had paid the debt secured -by the mortgage, but he had taken no transfer, if it be. conceived that he might have bettered his po- ’ sition by taking an assignment of a mortgage in which he appeared as mortgagor. So far 'as appears from the record, the only issue suggested in the trial court was based upon .the question .of priority between plaintiff’s' *432 judgment lien and claimant’s mortgage. The mortgage introduced by claimant should have been excluded on plaintiff’s objection, and it may be that claimant, relying upon the mortgage thus admitted in evidence, concluded that his mortgage title, so to speak, would prevail. If that was his error, it cannot be corrected on this appeal. Now claimant contends that he had and proved a landlord’s lien superior to the lien of plaintiff’s judgment. And clearly he did. But the claim he filed -had not alleged a lien in virtue of his landlordship, and under repeated decisions of this court he could not prevail by reason thereof. Gulf Coast Lumber Co. v. Miles, 90 So. 281, 206 Ala. 429; Hall & Brown Woodworking Mach. Co. v. Haley Furniture & Mfg. Co., 56 So. 726, 174 Ala. 190, L. R. A. 1918B, 924; Bennett v. McKee, 38 So. 129, 144 Ala. 601; Ivey v. Coston, 32 So. 664, 134 Ala. 259. This, for the reason, as stated in the cited cases, that, in his affidavit of claiih, claimant had failed to state the nature of the right he claimed as the statute (Code, § 10379) required him to do. His affidavit was that the bale of cotton “is not the property of the said E. B. Burney, but is the property of J. W. Hammond, affiant, and that affiant has a just claim to the property levied op.” According to the decisions referred to, this statement did not comply with the statute and would not support the claim. According to the same decisions a like reason would have prevented claimant’s recovery, even though he had shown a superior mortgage title — all this, according to the decisions, notwithstanding no objection was taken against the form or substance of appellant’s affidavit of claim. It results that the judgment must be affirmed Affirmed. ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.