Brown v. Hamil, 76 Ala. 506

76 Ala. 506 | Ala. | 1884

STONE, C. J.

— -In December, 1881, John O. Brown sued out an attachment against Smart and Henly, which was levied on farm products that had been grown that year. Brown asserted claim to the property attached, under a written contract of lien for advances to malee a crop, commonly called a crop-lien. After the property was attached, Smart, one of the defendants, gave a replevin bond with two sureties, one of whom was <J. M. Hamil, appellee in this cause. The attached property was then restored to the defendant in attachment. Brown recovered judgment by default against Smart and Iienly, defendants in attachment, and the replevied property not being surrendered to the sheriff, Hamil paid the amount of the recovery, to avoid a forced collection by him. This attachment proceeding was had under the amended sections 3289 and 3291 of the Code of 1876, as found in Pamphlet Acts 1880-1, pp. 54-5, approved March 1st. 1881. Under this statute, if Brown’s recovery had not been paid, Smart and his sureties, of whom Hamil was one, had no means of relieving themselves from the payment of the judgment. They had permitted all opportunities to pass for making any defense, based on a denial of the liability of the property to Brown’s attachment. — Jemison v. Cozens, 3 Ala. 636 ; Adler v. Potter, 57 Ala. 571.

After Hamil had paid Brown’s recovery, he instituted this action on the case, the gravamen of his action being, that Brown had wrongfully levied his attachment on property, on which he, Hamil, claimed he held a paramount lien. The claim of Iiarnii was that of landlord for unpaid rent. It is certainly true,'that a landlord has a lien on the crops grown on rented premises, for rent in arrear, which is paramount to that of an outsider, who claims only for advances made under crop-lien contract. And if the claim in this case had been asserted in correct form, and at the right time, there can be no question that 'Hamil’s right was superior to Brown’s. We have shown above that, in the attachment proceedings, even to their close and final execution, all the makers of the replevin bond were estopped from denying that the property was levied on under the attachment, and that it was subject to the process. The same result -would have followed, if the "property had belonged to an outside stranger, or if the levy had been fictitious, there being no such property. Statutory replevin bond is not the form in which adversary claim to property can be asserted. It proceeds on the concession that the property seized belongs to the defendant, and the bond is given to save the expense of safe custody, and to secure its return to the possession of the defendant, to remain there until the suit is determined. It is manifest that, so far as the attachment proceedings are concerned, the bondsmen on the replevin bond are estopped from denying that the property attached was the property of Smart, or Smart and Henly, and subject to the attachment. — Mead v. Figh, 4 Ala. 279 ; Dunlap v. Clements, 17 Ala. 778 ; Cooper v. Peck, 22 Ala. 406 ; Mitchell v. Ingram, 38 Ala. 395.

In Easly v. Walker, 10 Ala. 671, this court said : “We apprehend that the execution of a forth-coming bond, for propert} subject to seizure, would estop the party from controverting the regularity of the levy.” In Adler v. Potter, 57 Ala. 571, it was said : “ The obligors in the bond are estopped from disputing the levy, and the liability of the property levied on to seizure.” See, also, Collins v. Mitchell, 5 Fla. 364; McMillan v. Dana, 18 Cal. 339.

The result of the attachment suit being a conclusive estoppel on Hamil to dispute, in that suit, Smart’s ownership of the property in controversy, can he be heard to gainsay it in an independent action ? Would not the entertainment of such a suit be, in effect, to allow that to be done indirectly, which can not be accomplished by direct means? We hold, that,Ilauiil lost his opportunity by the unadvised course he pursued in the attachment suit. If, instead of being a mere lien creditor, he had been the absolute owner of the property, and had pursued the course in reference to it, which he is shown to have pursued in the attachment suit, we are unable to formulate an argument which will support his claim to the property, afterwards asserted. Can a better argument be made in favor of the present suit ? We think not.

The Circuit Court erred in charging the jury on the effect of the evidence.

He versed and remanded.