Bank of Mobile v. Lewis

80 So. 179, 16 Ala. App. 605, 1918 Ala. App. LEXIS 277

Opinion

SAIMFOBD, J.

The plaintiff’s claim is based upon a claim for rent, and hence plaintiff has a lien upon the goods, furniture, and effects belonging to the defendant and in its possession on the leased premises. Code 1907, § 4747.

[1] The plaintiff made out a prima facie case by showing that the automobile was in the possession of the defendant on the leased premises at the time of the levy, and the burden was therefore shifted ty the claimant to establish a better title to the property. Cochran v. Garrard & Sons, 150 Ala. 579, 43 South. 721.

[2] The question as to whether or not a conveyance is a mortgage is one of intention, to be decided from a consideration of the whole transaction, and not from any particular feature of it. On this ground the characterization of the transaction by the parties in the instrument itself may be fairly disregarded. 19 R. C. L. p. 244, note 18, and authorities there cited.

[3] Section 6043 of the Code of 1907 provides:

“When the claim interposed is based on a mortgage or lien the claimant must state in his affidavit the nature Of the right which he claims,” etc.

Failing to do this, he must be cast in the suit. Where a claimant claims by Ms affidavit to be the entire owner of the property involved, he cannot be allowed to support such claim by evidence of either a mortgage or a lien. Hall & Brown W. Mach. Co. v. Haley Furniture & Mfg. Co. et al., 174 Ala. 190, 56 South. 726, L. R. A. 1918B, 924; Bennett, Adm’x, v. McKee, 144 Ala. 601, 38 South. 129; Ivey et al. v. Coston & Co., 134 Ala. 259, 32 South. 664.

[4] But, even if the claimant had properly described Ms claim to the automobile in his affidavit as being a mortgage, it appeared on tbe trial that the indebtedness to the claimant had been paid in full, thereby divesting the claimant of all right, title, or interest which it had theretofore had in the automobile, and therefore the automobile levied upon was subject to the lien of the plaintiff.

The trial court did not err in setting aside the judgment in favor of the claimant.

The judgment of the trial court setting aside the judgment in favor of the claimant is affirmed.

Affirmed.