Hamilton v. Phillips Bros.

McCLELLAN, J. The city court erred in overruling the demurrer to defendants’ second plea. It is immaterial whether a judgment or execution lien is suspended in a sense as to property removed from the county or not. Whether so or not it is still a potential lien, and may be effectuated as against ad interim purchasers for value without actual notice through an execution sent to the county to which the property has been removed. Street v. Duncan, 117 Ala. 571. And if the right and power thus to effectuate the lie'n is destroyed or lost through the act of a third person in purchasing the property from the defendant and removing it beyond the limits of the State, clearly the plaintiff in execution or registered judgment is thereby damaged to the extent that he might have satisfied his execution or judgment out of the property but for such removal, and may sue such third party and recover notwithstanding there was no actual notice of plaintiff’s lien. In such case it would be obviously useless to issue execution to the sheriff of the county to which the property was removed since it 181 is no longer there and could neither be taken in satisfaction nor further affected in respect of the lien. The plea in question, therefore, set up nothing in bar of plaintiffs’ action, and the demurrer to it should have been sustained. With this plea out of the case, the judgment of the city court, trial being without jury, cannot be sustained on the evidence. If it be conceded that defendants’ mortgage to McBrayer was a bona fide and valid one— a question we leave to the city court on another trial — the plaintiffs here were damaged by the defendants to the extent the value of the property they removed from the State was in excess of the amount due on the mortgage. That is the amount plaintiffs could have realized out of the property by levy and sale but for the conduct of defendants, and they are entitled, on the assumption stated, to a judgment for at least that sum. That the property was worth and actually fetched more than the mortgage debt is clearly shown by the evidence. How much more the evidence does not with certainty disclose ; but plaintiffs having made a prima faeie case for the recovery of the full value of the property, it was upon the defendant to reduce the recovery by showing with certainty how much of the value of the property was not diverted from the satisfaction of the judgment lien, but properly went to the superior mortgage lien. Failing in this plaintiffs would be entitled to judgment for the full value of the property, not exceeding of course the sum secured by their lien. And so we might render judgment here ; but believing that the ends of justice may be better subserved by another trial in the city court, we will remand the cause.. Reversed and remanded.