Burton v. Dangerfield

141 Ala. 285 | Ala. | 1904

HABALSON, J.

The action is in case against the defendant, on his official bond, for haying levied an execution on persona] property of the plaintiff who was landlord of the defendant in' execution, and who' claimed a lien upon the property for rents due and to become due by the tenant, of which lien'the plaintiff gave notice to the constable; but that the constable, by virtue of his office, disregarding said notice, proceeded and sold and disposed of the property so levied on, and the same was purchased by a third person, and thereby the defendant hindered and delayed the plaintiff in the collection of his rents as stated in the complaint. The rent due at the date of the levy as stated in the complaint, was $35, and that to become due under the rent contract was $25, making the sum of $60. claimed as due and to become due under said contract, which sum the plaintiff claimed as the amount of damage he suffered by virtue of said levy and sale. The complaint cannot be treated as one in trover for the conversion of the property by the constable, but, as, stated, is one in case, for interference with and destruction of plaintiff’s lien for rents, by which he suffered special damage to the amount stated.

The demurrer to the complaint was properly overruled. It averred that the property was owned by the tenant, Lacey, the defendant in execution; that he was the tenant'of the plaintiff, under1 a contract with him to pay the plaintiff for the rent of the premises; that he, the plaintiff, had a lien on the goods levied on for the security of the rent in the amount specified in the complaint, and that before the sale; he gave notice to the defendant, Burton, that he had a lien on the property levied' on for the payment of said rent. The lien arose under Section 2716 of the Code of 1896, and it is well settled tliat an action in case lies by the landlord against any one, who' with notice of such lien, removes or converts the goods and effects on which the lien exists, so as to defeat or obstruct the enforcement of such lien by the statutory remedy of attachment. — Thompson v. Powell, 77 Ala. 392; Couch v. Davidson, 109 Ala. 314; Hussey v. Peebles, 53 Ala. 432.

There was no- error in allowing evidence, that the constable was indemnified to* make the levy and sale. This evidence tended to show, that he made the levy and sale with notice of the lien,' a fact within the issue on which the case wras tried.

Nor was there error in allowing a transcript of the official bond of the constable, which was sued on, to be introduced in evidence. It was payable to thei state, as required by Section 3070 of the Code, and was approved by the judge of probate and recorded in his office as required by Section 974 of the Code. By Section 1816, a transcript of a bond, when duly certified by the probate judge, as this one was, is required to be received in evidence in all courts. — Barnett v. Wilson, 132 Ala. 375.

There was no error in refusing to allow the witness, Lacy, to testify to -whom the rents belonged. His contract was to pay plaintiff. The word agent affixed to his name as payee of the rents, did not disqualify the plaintiff to sue in his own name for the rents. The word was mere desoriptio personae. — Goodman v. Walker, 30 Ala. 482; Lucas v. Pittman, 94 Ala. 616.

The fact that the plaintiff listed the property for taxation in the ye>ars 1899, 1900, as trustee for Mrs. Nor-wood was properly excluded. That fact did not prevent him from maintaining the suit, in his own name, under the1 contract with him individually.

The defendants requested the general charge. The bond sued on purported to have been executed by the constable, with the other defendants, — J. L. Lockwood, Thomas E. Parker, Jr., and T. G. Hewlett, as sureties thereon. It ivas alleged to have been executed on the •14th of August, 1896. The bond offered in evidence was executed on the 13th of August, 1896, by the constable and the defendants above named, and by R. Waxnock. The defendant insists on these alleged variances, against the introduction of the evidence, and that the general charge requested by him was sufficient to raise the question. This charge did properly raise the question of variance. The bond described in the complaint, is not the one offered in evidence. The general charge should have been given, because, of this variance. — New York Life ins. Co. v. McPherson, 33 South. 825.

There was no error in refusing the other charges requested by the defendant.

The court, at the request of the plaintiff, charged: “If the jury believe the evidence, they will find for the plaintiff and assess liis damages to the amount of the value of the property taken under the writ of execution by defendant, J. T. Burton.” The evidence tended to show, that the property levied on was worth $70. The complaint avers, that at the time of the removal of the property levied on, there was due plaintiff from his tenant Lacy, the sum of $35, as rent for the dwelling house, and that there would become due to him the further sum of $25 as rent on the recent contract, making $60 in all, for which he claimed a lien on the property levied on and sold, and which he was prevented thereby from enforcing. This was the extent of his damage as. laid. The suit was in case to recover this damage. Under the charge of the court, the jury found for plaintiff and assessed his damoge at $70, the value of the property. If it had been worth $500 or other sum larger than the amount of the rent, a recovery, according to the principle contained in the charge, might have been for such value. The jury should have: been instructed, that in no event, could they find for a larger sum than' the amount that plaintiff was shown to have been damaged by the interference with his lien. There was no question of exemplary damages in the case.

For the errors indicated the judgment must be reversed.

Reversed and remanded.