Kyle v. Swem

HARALSON, J. The facts in this case, as set out in the bill of exceptions, are stated to be without any conflict. The defendant, Swem, leased a house in Birmingham, with store below and rooms above, for the term of one year, from the 4th of September, 1888, from W. 0: Denson, the agent and husband of Mrs. Ettie W. Denson, who was the owner of the house and premises, and of the rent due under the lease ; and defendant, under the lease, went into the immediate possession and occupancy of the lease-hold, and carried with him and placed in the store and rooms the personal property the subject of this suit. Before the expiration of the lease, it was extended another year, the defendant continuing, as he had from the first,, in the open possession and occupancy of the premises, with said personal property in and upon it, until December 12, 1889. Swem failed to pay rent, and Mrs. Denson, sued out an attachment in the Circuit Court of Jefferson county, to enforce the collection of her rents, which attachment, coming to the hands of the sheriff, was, on the 12th December, 1889, le vied by him on the personal property which was on the premises, and which is sued for here. He constituted and appointed the defendant his special agent and bailee, to hold and keep said property for him, until he should call for the same. The plaintiff, Kyle, held a mortgage on this property— levied on by the sheriff under said attachment of Mrs. Denson — which mortgage was made by defendant to him on the 10th April, 1889, after the relation of landlord and tenant had been established between the defendant and Mrs. Denson, and while the property included in the mortgage was in and upon the rented premises. The plaintiff, on the 9th of December, 1889, after the maturity of his debt and mortgage, commenced this suit in detinue against defendant, in the Circuit Court of Jefferson county, to recover the possession of said property. The summons and complaint were placed in the hands of the sheriff on the 14th of December, and he appears, on the [576] 17th of December, to have seized thereunder the property already attached and left by him on the leased premises in the possession of the defendant, as his agent and bailee; and, on the 18th of that month, the defendant gave to the sheriff a detinue or forthcoming bond for the property, and it was left in the possession of the defendant, as it had continuously been, since the levy of said attachment on it. The attachment suit of Mrs. Denson, was prosecuted in said Circuit Court, and judgment was rendered in it on the 24th of March, 1890, for $541.75, which included $72.50, rent for a month of the first year’s renting. The judgment condemned said property for sale, to satisfy said rent claim of Mrs. Denson, and the sheriff took possession of the same from the defendant and sold it, and applied the net proceeds to the payment of said judgment. The defendant pleaded the general issue, payment, usury in the mortgage debt, and. a special plea, setting up most of the facts detailed above. To this plea, the plaintiff demurred, and the demurrer being overruled, he replied, to which replication the defendant rejoined, to which rejoinder the plaintiff demurred, which being overruled, he took issue, all of which will appear at large, in the record of the cause. The rulings of the court on the pleadings were free from error, as will appear in what follows. The bill of exceptions shows that all of the facts set up in said special plea and in said rejoinder were proved, without any conflict in the evidence. (The agreement by which the rent accrued to Mrs. Denson, as has been above shown, was entered into by the defendant, and he took possession of the rented premises, and placed said property thereon, before he gave said mortgage on the property to the plaintiff. Under these circumstances, Mrs. Denson’s lien for rent on the personal property was superior to that of the plaintiff on the same property.—Union Warehouse & El. Co. v. McIntyre, 84 Ala. 78. Her lien for rent attached to the property the moment it was brought into the rented store-house and rooms, and a mortgage on it, executed after this time, could convey no rights as against her claim and right for rent, for the term of the lease, so long as the property remained on the rented premises.—Abraham v. Nicrosi, 87 Ala. 173. In order to recover, it was necessary for the plaintiff to show, that the defendant was in the possession of the property sued for, at the time of the suing out of the summons and complaint — which appears to have been the only demand made for the possession — unless it should appear that, [577] having the possession, he held it under a contract of bailment, the terms of which he would violate by failing to redeliver it.—Walker v. Fenner, 20 Ala. 198; McArthur v. Carrie, 32 Ala. 75; Henderson v. Felts, 58 Ala. 593. The contention of the plaintiff, however, is that if defendant did possess and hold the property as bailee of the sheriff, at the date of the suit, and the alleged seizure of it under the detinue writ, the giving of the detinue bond by him terminates the bailment, and estops him to deny his possession. But we can not sustain this position, for it is well settled, that the levy of an ordinary attachment on personal property, itself creates a lien, and places the property levied on, in the custody of the law, and that the execution of a replevy bond by the defendant can not impair or destroy the lien. It is an inexpensive method of preserving the property until it is wanted for the payment of the judgment that may be rendered,. and until the bond is forfeited, the property remains in the custody of the law, and the lien is unimpaired.—Cordaman v. Malone, 63 Ala. 556; Scarborough v. Malone, 67 Ala. 570; Striplin & Co. v. Cooper & Son, 80 Ala. 256. When the sheriff levied Mrs. Denson’s attachment to enforce her lien, and took the property into his possession, from that moment it was in gremio legis, and his alleged seizure of it afterwards — which was merely formal, to seem to comply with the law — and the giving of said detinue or forthcoming bond by defendant did not and could not have the effect to impair or destroy the rent lien; nor can it be said, that the defendant, and not the sheriff, was in the possession of, and had the controlling power over the property. Defendant’s possession was that of his bailor*, the sheriff; and, accordingly, as the evidence shows, at the end of the attachment suit of Mrs. Denson, when the property was ordered to be sold by the court, the sheriff took it — kept by his bailee, the defendant, till this time for this purpose— and sold it, and applied the proceeds to the satisfaction of the judgment in attachment. There is no error in the record, and the judgment of the Circuit Court is affirmed.