78 So. 881 | Ala. | 1918
Lead Opinion
Opinion.
In statutory claim suits to try the right of property taken under attachment, execution, or other process, the statute directs that the plaintiff in process must allege that the property claimed is that of the defendant in process, and that it is liable to the satisfaction of the process; and the burden of proof as to both of these facts alleged is on the plaintiff. Code, § 6040.
“This statute was intended to protect creditors who deal with the mortgagor upon the strength of his ownership of the property, and who did not know of an existing unrecorded mortgage on same, and does not apply to creditors existing when the mortgage was made. This court, as far back as the case of Carew v. Love’s Adm’r, 30 Ala. 577, held that creditors and purchasers stand upon the same footing, and that the statute there considered meant subsequent and not existing creditors, and this case was followed in the cases of Durden v. McWilliams, 31 Ala. 206, and Mathis v. Thurman, 143 Ala. 560, 39 South. 360. It is true, those cases dealt with the statute of frauds against loans; but by analogy the word ‘creditor,’ as there used and construed, would apply to creditors and purchasers as used in section 3386, as the purpose of said section is to protect those dealing with a mortgagor who did not know of an existing mortgage. The burden was on the plaintiff to bring itself within the protection of the statute by showing that the debt was contracted after the mortgage was made.” Diamond Rubber Co. v. Fourth Nat. Bank, 171 Ala. 425, 55 South. 101.
There was no evidence whatever to show that plaintiff was a subsequent creditor, and therefore within the protection of the statute; and, the burden of proof being on him to show that the property was liable to the process, he therefore must fail in this claim suit, and the trial court should have found for, and rendered judgment in favor of, the claimant.
We must not be understood as holding that the plaintiff would have been entitled to a judgment had he proven that he was a subsequent creditor. It is not certain that the property was in Wilcox county at the date of the conveyance, in the sense in which the statute (section 3376) requires the mortgage to be recorded in that county. While the property was in Wilcox county when purchased by the mortgagor, he purchased for the purpose of removing it therefrom, and it was soon thereafter in transit and out of that county, and would probably have been out of the county before the mortgage could be recorded in Wilcox county. As to this, however, we do not decide, but merely desire not to commit ourselves one way or the other. Moreover, the mortgage in this case was solely to secure the purchase price of the mules; the mortgagor never had any right or title to the mules except that which he acquired by the sale and by the mortgage which was a part of the sale. The mortgage prevented the title from ever vesting in the mortgagor, except by a preference of the creditors of the mortgagor. In the absence of fraud, it is difficult to see how his creditors could acquire a title and right through him, which he himself did. not then have and never did have.
The case would seem to be different from one where the mortgagor had title, but parted with it by a mortgage or conveyance which was void as against his creditors; there his creditors acquire the right and title which he would have had but for the void mortgage or conveyance. Here, however, it appears that he had no right or title except that which he acquired by virtue of the ,mortgage and sale, which together constituted but one transaction. But as to this we decide nothing because not necessary; we merely suggest these difficulties, without being at all committed or bound by the suggestions in any case wherein the question is presented.
Reversed and rendered.
Lead Opinion
This cause was submitted, and considered under rule 46 of this court (178 Ala. xix, 65 South. vii), and the opinion was delivered by Mr. Justice MAYFIELD:
The filing of the claim suit and bond, as is provided for instituting the claim suit, estops the claimant from disputing or questioning the levy, or mere irregularities in the process — matters which do not affirmatively show on their face that the process is void. Bradford v. Bassett,
The trial court did err, however, in finding for the plaintiff in attachment. There was no proof to show that the property was liable to the satisfaction of the process, as against the rights of this claimant under the mortgage. It is true that the proof showed that the mules, literally speaking, were in Wilcox county when the mortgage was executed, and that the mortgage was never recorded in Wilcox county until after the attachment was levied upon them. This, however, did not render the mortgage void as between the parties thereto. It was just as valid against the mortgagor as if properly recorded in all the counties required by section 3376; but this section does not provide or fix penalties for the failure to so record, nor does it provide for the protection of creditors of, or purchasers from, the mortgagor. Section 3386 of the Code provides for the effect of failure to record mortgages of chattels and, of course, controls in this respect; but section 3376 controls as to the counties in which the mortgages shall be recorded, in order to guard against the provisions of section 3386. Jones v. State,
"This statute was intended to protect creditors who deal with the mortgagor upon the strength of his ownership of the property, and who did not know of an existing unrecorded mortgage on same, and does not apply to creditors existing when the mortgage was made. This court, as far back as the case of Carew v. Love's Adm'r,
There was no evidence whatever to show that plaintiff was a subsequent creditor, and therefore within the protection of the statute; and, the burden of proof being on him to show that the property was liable to the process, he therefore must fail in this claim suit, and the trial court should have found for, and rendered judgment in favor of, the claimant.
We must not be understood as holding that the plaintiff would have been entitled to a judgment had he proven that he was a subsequent creditor. It is not certain that the property was in Wilcox county at the date of the conveyance, in the sense in which the statute (section 3376) requires the mortgage to be recorded in that county. While the property was in Wilcox county when purchased by the mortgagor, he purchased for the purpose of removing it therefrom, and it was soon thereafter in transit and out of that county, and would probably have been out of the county before the mortgage could be recorded in Wilcox county. As to this, however, we do not decide, but merely desire not to commit ourselves one way or the other. Moreover, the mortgage in this case was solely to secure the purchase price of the mules; the mortgagor never had any right or title to the mules except that which he acquired by the sale and by the mortgage which was a part of the sale. The mortgage prevented the title from ever vesting in the mortgagor, except by a preference of the creditors of the mortgagor. In the absence of fraud, it is difficult to see how his creditors could acquire a title and right through him, which he himself did not then have and never did have.
The case would seem to be different from one where the mortgagor had title, but parted with it by a mortgage or conveyance which was void as against his creditors; there his creditors acquire the right and title which he would have had but for the void mortgage or conveyance. Here, however, it appears that he had no right or title except that which he acquired by virtue of the mortgage and sale, which together constituted but one transaction. But as to this we decide nothing because not necessary; we merely suggest these difficulties, without being at all committed or bound by the suggestions in any case wherein the question is presented.
It therefore results that the judgment for the plaintiff was erroneous; and, as the *529 cause was tried without a jury, we here render the judgment for the claimant which the trial court should have rendered.
Reversed and rendered.
ANDERSON, C. J., and SOMERVILLE, and THOMAS, JJ., concur.
Application overruled.
Rehearing
On Application for Rehearing.
Application overruled.