Hammond v. White

108 So. 346, 21 Ala. App. 344, 1926 Ala. App. LEXIS 117

Opinion

RICE, J.

This is a trial, by the court sitting without a jury, of the right of property between the appellee as plaintiff in execution and the appellant as claimant. The only error assigned is the action of the trial court in rendering judgment for the plaintiff.

The affidavit of claim recites simply that the property levied upon was not that of the defendant in execution, but was the property of the claimant who had a just claim thereto. From the evidence and the brief for appellant it is clear that claimant bases his right to recover upon a lien as for rent and, advances.

In a statutory trial of the right of property, where,the claim to the property is based on a mortgage or lien, the affidavit of claim must state the nature of the right, and, if faulty in this respect, the claimant must be east in the suit. Bennett v. McKee, 144 Ala. 601, 38 So. 129; Ivey v. Coston & Co., 134 Ala. 259, 32 So. 664; Code 1923, § 10379.

The judgment is in accord with the law as above stated. It is affirmed.

Affirmed.