Wilson v. Windham

90 So. 791, 206 Ala. 427, 1921 Ala. LEXIS 213

• Court: Supreme Court of Alabama
• Decided: January 13, 1921
• Docket: 6 Div. 121.
• Status: Published

Opinions

BROWN, J.

This action is by Wilson against Windham. The complaint was filed April 5, 1918, and contains counts in trespass, trover, and detinue. The subject of the controversy is cotton and corn grown by the Colemans on lands which they occupied as tenants of Mrs. Atkins during the year 1915.

The plaintiff claimed title to the property under two mortgages executed by the Cole-mans, on February 15 and February 19, 1915, respectively, and due- and payable October 1, 1915, covering corn, cotton, and other products to be grown by the Colemans during the year 1915, which were offered' in evidence.

To recover it was incumbent on'the plaintiff to show that the debts secured by these mortgages, or some part thereof, was unpaid at the time this suit was brought. Kinston Supply Co. v. Kelly, 200 Ala. 151, 75 South. 899, and authorities there cited.

While the mortgages and the notes secured thereby would be evidence of a debt in a suit thereon between the parties to the contract, by virtue of the statute (Code 1907, § 3966), this is not true in a suit against one not a party to the contract.

[1] Though it is shown that the defendant in this case filed his claim, affidavits, and bonds in the two detinue suits brought by the plaintiff in this case against the Colemans to recover the property, the plaintiff proceeded to judgment in those cases against the original defendants without a trial of the claim suit and without regard thereto, and no judgment appears to have been rendered in the claim suit determining the rights of property as between the plaintiff and the defendant in this case. So the proceedings in those cases were res inter alios acta as to- the defendant in this case, and without evidentiary force as showing or tending to show a superior title to the property in the plaintiff.

[2] Where a claim is interposed to the property in a pending detinue suit by a third party, the plaintiff has the affirmative and must become the actor, and the claimant occupies the position of a defendant, and the claim suit should be disposed of before the proceedings are brought to judgment in the original suit. Keyser v. Maas, 111 Ala. 390, 21 South. 346; 4 Mayf. Dig. 975, §§ 18-20; Cofer v. Reinschmidt, 121 Ala. 252, 25 South. 769; Abraham v. Nicrosi, 87 Ala. 178, 6 South. 293.

The right of the plaintiff to recover must therefore be referred to the mortgages, and having failed to offer proof showing or tending to show an indebtedness due tbereon, tbe court properly gave the affirmative charge for tbe defendant.

Affirmed.

ANDERSON, O. J., and SAYRE and THOMAS, JJ., concur.