McCrossin v. Davis

COLEMAN, J. Appellee Davis sued the appellant in detinue to recover a mule. The action was tried by the court under the statute, without the intervention of a jury. The court rendered judgment for the plaintiff. The only error assigned is as to the judgment rendered. We are of the- opinion, that the identity of the mule is sufficiently es [633] tablished by tbe evidence. Tbe only material question is whether the estray proceedings sufficiently complied with the statute, to give the purchaser who purchased the mule as an estray, and through whom the defendant derived title, a valid title against the original owner. The taker-up of an estray, who proceeds according to the statute, is invested with a qualified property in the animal, and upon his complying with the statute, he may become the absolute owner after the expiration of twelve months. Hudgins v. Glass, 34 Ala. 110; Stephenson v. Brunson, 83 Ala. 455. The title thus acquired does not rest upon the judgment of any court, condemning the animal to sale,.or decree investing the taker-up with the ownership upon ascertaining that the requirements of the statute have been complied with. The title is made to pass, upon complying with the statute. The requisitions of the statute are necessary muniments of title, against the original owner, and it is incumbent upon one who relies upon such a title to see that the statute has been complied with, and to preserve the evidence to show such compliance. The decisions are numerous which hold that “estray” proceedings are stricti juris, and the burden is on him who claims under title thus acquired to show affirmatively that the statute has been strictly complied with.—Dillard v. Webb, 55 Ala. 468; Cory v. Dennis, 93 Ala. 440; Stewart v. Hunter, 8 Amer. St. Rep. 267; Ib. 272; City of Fort Smith v. Dodson, 51 Ark. 447; 14 St. Rep. 62, and note. The record fails to inform us that the following provisions of the Code were complied with: Sections 1343, 1344. The mule was appraised at more than twenty dollars. The proof does not affirmatively show that sections 1340 and 1342 of the Code as to the advertisements of the estray were complied with. We find no error in the conclusion of the court, and the judgment must be Affirmed.