Jones v. Anderson

76 Ala. 427 | Ala. | 1884

STONE, C. J.

— The present suit is a statutory action for the recovery of chattels in specie; different from the common-law action of detinue, only, in the super-addition of certain statutory provisions and powers. Anderson sold to Jones and Autrey, and delivered to them, a log-cart with fixtures, and a team of oxen. The executory consideration of the purchase was twenty-five pieces of hewn timber, to class “ B No. 1, good” to average 120 feet, and to he delivered within a reasonable time at a designated place. The contract was evidenced by written agreement, signed by Jones and Autrey, and contains a clause that Anderson “ reserves and holds a lien on the [property sold] until the said twenty-five pieces of hewn timber are hauled,” &c.

If there be nothing else in the transaction, it is manifest this language does not secure a legal title to Anderson, nor does it amount to a legal mortgage of the property, as security for the purchase-money. Of itself, it secured to Anderson no right to take possession of the property. It confers a lien, or equitable mortgage, enforceable alone in equity. — Donald v. Hewitt, 33 Ala. 534; Jaokson v. Rutherford, 73 Ala. 155. An equitable title will not maintain detinue.— Collier v. Faulk, 69 Ala. 58; Mayer v. Taylor, Ib. 403; Wilkinson v. Ketler, Ib. 435; Rees v. Coats, 65 Ala. 256.

After the plaintiff, Anderson, claimed that Jones and Autrey had broken their contract, he demanded of Autrey, in the absence of Jones, that they should comply with their contract by delivering the timber, or that the cart, fixtures and team should be delivered to him. Autrey replied, that he did not have the possession of them; that he had sold out his interest in the contract to Jones; but that, so far as he was concerned, Anderson might take them. He thereupon did take possession of them, and carried them off. The property being afterwards found in the possession of Jones, Anderson instituted this suit, and claims that the possession he had previously obtained with assent of Autrey gave him such rightful possession as will maintain this action. A prior, rightful possession of personal property, violated and broken up, will maintain detinue, against all comers, except a better owner. — Shomo v. Caldwell, 21 Ala. 448; Miller v. Jones, 26 Ala. 247; Reese v. Harris, 27 Ala. 301. Ilad Anderson such rightful possession ?

We have shown above that the written contract conferred no legal title on Anderson. It gave him, not any right to seize the property, but only a rigtít to subject it in equity to the payment of his demand. To confer on him a right to take possession of the property, assuming that the contract of sale wuis binding, required either a rescission, or such modification of its terms as to convert it into a legal mortgage, instead of an equitable. Neither the contract, nor anything else in this record, shows that Jones and Autrey purchased as partners, if that would make any difference. They purchased jointly, and became equal owners. Autrey had no authority to rescind the contract, nor to modify its terms, without the concurrence of Jones; and it results that the legal title to the property remains out of Anderson, so far as .the question we have been considering is concerned.

Charge numbered 6 ought to have been given, as the evidence appears in the record. Charge numbered 8 would be correct, if one expression had been omitted. It is certainly true that, before plaintiff is entitled to recover, he must have a right of possession of the property sued for. Showing that, however, he need not go farther, and prove a prior possession and a lien. These additional rights would certainly not impair his right to recover, but he could make out his case without them. The case of Bryan v. Smith, 22 Ala. 534, is not opposed to these views. Prior possession is good against any one, who can not show a better outstanding legal title, with which he connects himself. — Miller v. Jones, supra.

There was, probably, another phase of this case raised in the court below. We infer from the record, that a dispute was raised, whether or not Jones and An trey had the twenty-five pieces of hewn timber they promised to deliver, in payment of the chattels purchased. By the written contract, they sold and conveyed to Anderson “twenty-five pieces hewn timber, to average one hundred and twenty feet, and class ‘B 1, good,’ now lying near Brooklyn, Ala.,” &c. The meaning of this language is, that they then had and owned the hewn timber they bound themselves to deliver. The testimony on this question was not very harmonious. We suppose the question of fraud was sought to be raised on this controverted question of fact. If they then had the hewn timber, they were in much better condition to comply with their contract, than if they had it not. There are circumstances of fraud and false representation or concealment,, sometimes entering into contracts of purchase on credit, which arm the seller with the right, if seasonably expressed, of renouncing the contract, and recovering the property thus fraudulently obtained from him. 2 Brick. Dig. 14, §§ 10, 20; Loeb v. Flash, 65 Ala. 526. But fraud is defensive matter, the onus of which rests on him who asserts it. It would seem charge No. 4 should have been given.

In admitting proof of the meaning of certain phrases found in the written .contract in this case, the Circuit Court did not err. — Smith v. Aiken, 75 Ala. 209.

The verdict and judgment in this case should have ascertained the separate value of the articles .sued for. — Haynes v. Crutchfield, 7 Ala. 189; Miller v. Jones, 29 Ala. 174; Rambo v. Wyatt, 32 Ala. 363 ; Rose v. Pearson, 41 Ala. 687.

Reversed and remanded.