Brown v. Coats

STONE, J. A fundamental error which underlies this case, and exerts a controlling influence in the determination of many of the questions presented, is a misapprehension of the relations subsisting between the parties. As the evidence discloses, they were tenants in common, not landlord and tenant. — Smyth v. Tankersly, 20 Ala. 212 ; Thompson v. Mawhinney, 17 Ala. 362. , 2. But the question, whether the attachment was rightly sued out, was matter of abatement only, and could only be [443] raised by plea in abatement; and if sued out on a demand for wbiob attachment in the particular case would not lie, the mode of reaching the defect was by a rule on the plaintiff to show cause why the attachment should not be dissolved. — Jordan v. Hazzard, 10 Ala. 221; S. C., 12 Ala. 180; Gill v. Downs, 26 Ala. 670; Van Dyke v. The State, 24 Ala. 81; Cain v. Mather, 3 Porter, 224; Roberts v. Burke, 6 Ala. 348; Burroughs v. Wright, 3 Ala. 43; Ex parte Putnam, 20 Ala. 592. The error in resorting to attachment in this case, under section 2961 of the Bevised Code as amended, could only be reached by motion to dissolve, under the authorities cited above. Plea to the merits, which we find in this record, was a waiver of that defense, and left for trial before the jury the simple question of indebtedness, and the amount of it.- — -Bev. Code, § 3000; Burroughs v. Wright, 3 Ala. 43. 3. It results from what we have said above, that no question could be considered in the court below, tried as the case was, on pleas to the merits of the action, which raised, or sought to raise, the issue of landlord and tenant, or the lien of the former for advances. Nor should the question of exemption have been brought up in the trial, or at that stage of the suit. The former had been waived, and the latter was premature. The pleas and motion which sought to raise these questions were foreign to the issue formed on the plea of non assumpsit, and they should have been entirely disregarded by the court. The judgment entry in this cause contains much that should not have been adjudged. Under the pleadings, no question was properly before the court, which authorized the judgment that the property attached was subject to the debt, or that defendant could not claim it as exempt. All of the judgment entry is here vacated and annulled, except that part which sets forth the submission of the cause to the jury, the verdict rendered ascertaining the amount due, and the judgment of the court thereon, “ that the plaintiff recover of the defendant said sum of one hundred and one 55-100 dollars, the damages assessed by the jury, and the costs of suit, for which execution may issue,” &c.; and said judgment is here corrected and rendered accordingly. Some rulings of the Circuit Court were not in accordance with the views above expressed; but they were immaterial, and did the defendant no injury. For such errors, we do not reverse.- — 1 Brick. Dig. 780, § 96. 4-5. So far as any supposed lien of the attachment is concerned, if the property replevied be restored to the sheriff, we are not prepared to say the defendant may not success^ fully interpose his claim of exemption, secured to residents [444] of this State. There is another question, however, which we feel it our duty to notice. While, as we have shown above, Coats does not sustain the relation of landlord, and can assert no lien by virtue of such relation, still, if his testimony be true, the agreement of Brown with him, under which he alleges he made the advances, constitutes a valid parol mortgage, by virtue of which Coats has the right to sue and possess himself of the property mortgaged. — Morrow v. Turney, 35 Ala. 131. See, also, 2 Brick. Dig. 248, §§ 9, 10, 11. Against such mortgage of personal property, claim of exemption is inoperative. Judgment reversed, and here corrected, at costs of the appellee.