Petree v. Wilson Bros. & Co.

HARALSON, J. The evidence introduced by the plaintiffs — their judgment, execution thereon, levy on the property claimed, the claim bond oí the claimant, the possession of the property at the time by defendant in execution claiming it as his, and the value of each separate article levied on — entitled the plaintiffs to a verdict and judgment on the issue joined, unless the claimant proved-a superior right and title. To do this, he sought to introduce a mortgage on the property levied on, executed by defendant in execution to him, older than plaintiffs’ execution, under which they claimed the right to the property. But the claimant did not prove the execution of his mortgage by the subscribing witness, shown to be living near at hand, and who had not been subpoenaed. No rule is better settled, tha,n that when one claims personal property under a mortgage, which is attested by a subscribing witness, its execution must be proved by him, or a proper predicate must be laid for the introduction of secondary evidence ; and the admissions or declarations of the parties themselves to the instrument (not made in open court, or in writing for the purposes of a trial when they are parties litigant) are not admissible for this purpose. — Askew v. Steiner, 76 Ala. 218 ; Richmond & D. R. R. Co. v. Jones, 92 Ala. 226. And, its execution can not be proved by the mortgagor or mortgagee, when the subscribing witnesses are not called, and no reason for failing to produce them is shown. — Russell v. Walker, 73 Ala. 315. There were other questions reserved as to the introduction of the record of the judgment in the probate court, but they are not important to be considered. The judgment of the court was, that certain property [160] which had been levied on and claimed, but found by the jury to belong to the defendant in execution, be condemned to the satisfaction of plaintiffs’ debt. The court went further, and entered judgment againt the claimant and the sureties on his claini bond, for the costs of the claim suit. It is only by virtue of the statute that execution can issue against the sureties, for they are not parties to the judgment. If judgment is rendered against the claimant, as was done here, and he fails to deliver the property within thirty days thereafter, to satisfy the plaintiffs’ execution, the sheriff must endorse the bond forfeited; and thereupon, the clerk must issue execution as directed by section 3008 of the Code, for the “plaintiffs’judgment * * * and also for the damages, if any were assessed, and the costs of the trial of the right of property.” — Langworthy v. Goodall, 76 Ala. 325; Catching v. Bowden, 89 Ala. 605. But, this was a mere irregularity, which will be corrected here, by striking out that part of the judgment which gave costs against the sureties, and as thus corrected, it will be affirmed. — Kennon v. Adams, 100 Ala. 288. Corrected and affirmed.