Gillespie v. Bartlett & Byers

100 So. 858, 211 Ala. 560, 1924 Ala. LEXIS 266

• Court: Supreme Court of Alabama
• Decided: May 29, 1924
• Docket: 7 Div. 464.
• Status: Published

Opinions

SOMERVILLE, J.

The appellees Bartlett & Byers sued T. W. Ross and W. D. Ross in detinue for three bales of cotton, and a quantity of corn and fodder. Plaintiffs’ claim is based on a mortgage executed to them by defendants on March 17, 1921, securing a debt of $1,000, which conveyed to plaintiffs the legal title to this property, and which was in default on November 21, 1921.

The property was seized under a' writ of detinue, and thereupon the appellant, W. T. Gillespie, intervened as claimant, filing his affidavit and bond as required by law, setting up that this property was raised on his land during the year 1921, and was delivered to him by W. D. Ross, defendant, before its seizure under process; his claim being based on “a landlord’s lien for rent.”

Thereupon an issue was made up; plaintiffs alleging that they had the legal title to the property in suit and the right of immediate possession. This was the proper issue, and the burden of proof was on the plaintiffs. Keyser v Maas, 111 Ala. 390, 21 South. 346. This constitutes a new and collateral cause which—

“stands for trial between plaintiff and claimant as though they were original parties plaintiff and defendant, respectively, to a statutory action of detinue — an action involving, not the right to subject property to the satisfaction of a debt as in case of a levy of attachment or ex-, ecution, but only the legal title and tlie right of possession of specific property.” Slaughter v. Webster, 194 Ala. 642, 644, 70 South. 128, 129: Hesk v. Ellis, 200 Ala. 16, 75 South. 329.

Plaintiffs offered in evidence the chattel mortgage, as above described, after showing by T. W. Ross that he and his son, W. D. Ross, executed the mortgage. The mortgage was attested by one witness, and claimant objected to its introduction in evidence on the ground “that its execution had not been proven,” which objection was overruled. Section 4006 of the Code provides that—

“The execution of any instrument of writing attested by witnesses may be proved by the testimony of the maker thereof, without producing or accounting for the absence of the attesting witnesses.”

This changes the common-law‘rule which required that proof of any attested instrument should be made by the attesting witness, or that otherwise his absence should first be accounted for. Ellerson v. State, 69 Ala. 1; Russell v. Walker, 73 Ala. 315; Askew v. Steiner, 76 Ala. 218.

Where an attested instrument is executed by more than one grantor or maker, and its validity and effect depend upon their joint execution — the attesting witness not being produced or accounted for — the testimony of one of the parties that he and the other or others signed it is not sufficient to prove it. Stamphill v. Bullen, 121 Ala. 250, 25 South. 928. But the chattel mortgage here exhibited was clearly a joint and several instrument, and the testimony of T. W. Ross that be executed it was sufficient proof to admit it as his own act and deed, and to i give it effect accordingly. It of course did not render it effective as the proven act and deed of his comortgagor, W. D. Ro.ss. But, since the property here involved was the property of T. W. Ross, W D. Ross’ execu-. tion of the mortgage, vel non, was wholly immaterial. Moreover, even if available, the objection should have been made to the witness’ testimony. A general objection to the mortgage that “its execution had not been proven” was not sufficient. Houston Nat. Bank v. Edmonson, 200 Ala. 120, 75 South. 568. The mortgage was properly admitted.

The issue was upon the legal title and right to possession of the chattels sued for, and plaintiffs’ legal title necessarily prevailed over the landlord’s lien upon which claimant relied, wlietlier the lien was acquired before or after the mortgage was executed to plaintiffs. Houston Nat. Bank v. Edmonson, 200 Ala. 120, 75 South. 568. Nor could that result be affected by the fact that the property was delivered by the mortgagor to claimant for the satisfaction of his rent claim after plaintiffs’ legal title was acquired. Id.

This is the view of the writer and of Gardner, J. A majority of the court, however, are of the opinion that, if the claimant’s lien antedated the plaintiffs’ mortgage, a delivery of the crops to the landlord by the tenant gave to the landlord ¶. legal-title or right of possession superior to that of the mortgagee. But all of the justices are agreed that under the evidence before the trial judge he could have properly found that the relation of landlord and tenant did not begin until Ross reconveyed the land to the claimant, Gillespie, and executed to him his rent note, on July 23, 1921. On that theory of the evidence, plaintiffs’ mortgage was superior to the claimant’s lien subsequently acquired, and the judgment so declaring will not be disturbed.

The judgment rendered was proper in form and in substance, and was, indeed, the only judgment that could have been rendered in a detinue suit. Slaughter v. Webster, 194 Ala. 642,. 644, 70 South. 129.

We find no error in the record, and the judgment will be affirmed.

Affirmed.

All the Justices concur.