Starnes v. Allen, West & Co.

STONE, J. It is true that in a trial of right of property, under the statute, the claimant can not defeat plaintiff’s recovery by proving outstanding title in a stranger. — Foster v. Smith, 16 Ala. 192; 2 Brick. Dig. 480, § 67. This principle, however, hath this extent: When plaintiff in execution makes out a 'prima fade case, the claimant will not be allowed to overturn it by proving title in a stranger, with whose title he does not connect himself by privity of estate. It does not overturn the statutory rule, that “ the burthen of proof is on the plaintiff in execution.” — Code of 1876, § 3343. It has long been settled in this State, that in trials of right of property, a statutory suit which has been classed as sui gene-ris, the proper issue is “ an affirmation on the part of the plaintiff that the property in question is subject to his execution, and a denial of that fact by the defendant.” — Code of 1876, § 3342; 2 Brick. Dig. 478-9, §§ 48, 49, 51, 52. See, also, McAdams v. Beard & Henderson, 34 Ala. 478, 481. Tire form, and only proper form, to be observed in framing [321] the issue, requires the plaintiff in execution “ to allege that the property levied on is the property of the defendant in execution Tor attachment], and liable to its satisfaction.”.— Code of 1876, §§ 3342, 3290. The leading, fundamental fact is, that the property seized belongs to the defendant, by a title which renders it liable to levy and sale under the process. Possession in the defendant is prima facie evidence of such ownership, and in the absence of other proof, would require a condemnation of the property. In just such case as this, that other principle comes in, namely : that plaintiff, having thus shown a prima, fa.de case of liability, the claimant wül not be permitted to rebut that prima fade case by proving title in a stranger. But, until the plaintiff in execution proves title in the defendant, or makes proof of such prima fade title, it is immaterial whether claimant has title or not. The plaintiff must fail, not because claimant has shown a title in himself, but because plaintiff has failed to prove the essential, indispensable fact pf such ownership in the defendant, as renders the property liable for the satisfaction of the debt; and that ownership or title must be such that, under our statutes, it is subject to seizure and sale under execution against such defendant in execution. The levy and averment of liability assert two propositions: that defendant in execution is indebted to the plaintiff, and that the goods seized are the property of the defendant, and as such liable to the payment of his debt. Lien, right, or even title to the goods, in plaintiff, not only does not strengthen his right to condemn them under execution or attachment, but their tendency is in the opposite direction. — See Boswell v. Carlisle, at December term, 1876; Dent v. Smith, 15 Ala. 286; Powell v. Williams, 14 Ala. 476; Barker v. Bell, 37 Ala. 354. The testimony of Talbot Hibbler, if believed, tends to show that his claim to the cotton, and only claim, consisted in a landlord’s lien for rent and for advances. This is not such a title or interest as can be levied upon under execution or attachment. It gave to Hibbler no right to take possession of the crop, without delivery by or permission from the tenants. — Folmar & Sons v. Copeland & Brantley, at the present term. The tenants were only debtors to Hibbler, and the latter had but a lien on the crop for the security of his claim, if his version of the transaction be the true one. Under the rules above laid down, there are many rulings in this record which must work its reversal. The following evidence was improperly admitted: First, the written memorandum of sale made by the tenants to Allen, West & Co., [322] dated 21st December, 1876; second, tbe letters from Talbot Hibbler to Allen, West & Co. As to tbe charge of tbe court, there is no question of estop-pel that affects the issue in this cause. Tbe statement of tbe issue before tbe jury, found in tbe first paragraph of tbe general charge, does not sufficiently show that the onus was on tbe plaintiff to mate out bis case. Charges numbered 5 and 6, of tbe general series, should not have been given. Charges Nos. 2 and 3, of those requested by plaintiff, are not in harmony with tbe principles laid down above, and tbe court erred in giving them. Tbe two charges asked by claimant should have been given. Each asserts a correct legal principle. Reversed and remanded.