Milner & Kettig Co. v. DeLoach Mill Manufacturing Co.

HARALSON, J. — The case was tried on issue joined on the pleas 10 and 11, Avhich were pleas of not guilty, and on replications 4 and 5 to plea 13. A demurrer was interposed to the 12th plea, as appears by the judgment entry and was sustained, but the demurrer does not appear in the record. The demurrer to replications 4 and 5 to plea 13, were properly overruled. If the property levied on by the defendant, under attachment, as is averred in the repli [650] cations, was, at the time of the levy, wholly the property of plaintiff, and Gross, against whom the defendant, had recovered a judgment, in its attachment proceedings, had, at that time, no right, title or interest therein, then the defendant’s levy and sale of the property under' its attachment, conferred no title on it, as against the plaintiff, and the replications were a full answer to said plea 13. The evidence fully sustains these replications. .Prom the agreement of counsel as to the facts on which the case was tried, it appears, that in January, 1898, the plaintiff contracted in Atlanta, Georgia, to sell to F. M. Gross the property mentioned in the complaint. Gross gave his notes for the property purchased, .and in them, it was specified that the plaintiff retain the title to the property until the same was paid for. On March 18, 1898, Gross surrenders and assigns to plaintiff all his right, title and interest to the property sued for, which release and surrender was in writing and duly executed. By this agreement, the sale by plaintiff was rescinded and the plaintiff became, on the 18th of March, 1898, the absolute and unconditional OAvner of the property, divested of all claims of Gross thereto, and of all the incidents attaching to a conditional sale. The question of conditional sale, therefore, and the protection of defendant as a bona fide purchaser of the property Avithout notice of plaintiff’s title, as provided for in section 1017 of the Code, does not arise, and requires no consideration. It is no defense generally to the action of trover, that the defendant is a purchaser for value, aud Avithout notice of the rights of the real owner. — 26 Am. & Eng. Ency. Law (1st ed.), 731. The title to the property being absolutely in the plaintiff, which was entitled to its immediate possession, it was attached by the defendant and one' Peters, judgment creditors of ‘..id Gross, and their Avrits of attachment were levied on it as the .property of said Gross, and it was sold under said attachments as his property, — the defendant becoming the purchaser. In buying at the sheriff’s sale under attachment against. Gross, caveat emptor applied, and defendant acquired no greater title than Gross had at [651] tlie time of the sale; and under the facts of the case as agreed on, lie bad. no title. — Goodbar v. Daniel, 88 Ala. 533; Lindsay v. Cooper, 94 Ala. 178; Clemmons v. Cox, 114 Ala. 350; Ezzell v. Brown, 121 Ala. 150. The attachment of Peters Avas levied on the property by a constable, that of defendant by a sheriff, yriio took the property, and sold it under both attachments, the defendant being the purchaser. On the undisputed facts, the plaintiff had the legal title to the property, and the right to its immedaite possession, and the possession of the constable and sheriff under the attachment writs, being illegal, the property Avas not, as contended by defendant, in the custody of the law. — Bissell v. Lindsay, 9 Ala. 162; The Governor v. Gibson, 14 Ala. 326, 331: Easly v. Dye, 14 Ala. 158, 166; Freeman on Fix. § 268. “Any intermeddling Avith the property of another, or the exercise of dominion over it, whether by the defendant alone or in connection with others, in denial of the OAvner’s rights, is a conversion, though the defendant had not (himself) the complete manucaption of the property. — Bolling v. Kirby, 90 Ala. 215; Boutwell v. Parker, 124 Ala. 341. If there was any error in overruling the demurrer to plea 12, it was error without injury, since the defendant in the trial, had the benefit under other pleas of the dt. fense set up in that plea. The court charged the jury, that if they believed the evidence, they would find a verdict for the plaintiff, and assess the damages at the agreed value of the engine and. boiler, Avith interest from the date of the leAry by defendant until the trial, and in this charge we have been unable to discover any error. Affirmed.