53 Ala. 535 | Ala. | 1875
Before the statute, authorizing the interposition of a claim to property levied on by attachment, or execution, and a trial of the right to such property, whether it was in the claimant, or in the defendant in the process, the remedy was by an action of trespass against the officer levying the process, or of trover or detinue, against him, or those obtaining possession from him. The statutory remedy is cumulative, and can be maintained only when one of these actions could be supported at common law. It follows that, as in these actions the plaintiff must have recovered on the strength of his own title, and not on the weakness of the defendant’s, he cannot, in support of a claim under the statute, show that the right and title to the property levied on is in any other person than himself, unless he connects himself and his possession with such title. McGrew v. Hart, 1 Port. 175; Frow & Ferguson v. Downman, 11 Ala. 880; Foster v. Smith, 16 Ala. 192 ; Thomas v. Degraffenreid, 17 Ala. 602.
On a trial of the right of property, the only proper issue is an affirmation by the plaintiff in the process, that the property levied on is subject to the process, and a denial of that fact by the claimant. R. C. § 3017; Langdon & Co. v. Brumby, 7 Ala. 53. Such an issue is sufficiently comprehensive, to authorize the to introduce evidence of
The claimants were commission merchants in. the city of Montgomery, and as such received for sale from Fariss & McCurdy six bales of cotton, having made to them advances exceeding its value. They sold the cotton to one Campbell, a cotton buyer, one of the defendants in attachment, and he obtained possession and was about shipping it, when the levy was made. Whether there was a delivery of the cotton to .Campbell, by authority of claimants, was a matter about which the evidence was conflicting. He had not paid for the cotton, and had previously bought cotton of claimants and paid for it.
The court, ex mere motu, charged the jury, if they believed from the evidence that claimants sold the cotton to Campbell for their own account, they must find for the plaintiff. On request of plaintiffs the court charged the jury, if they believed from the evidence that claimants sold the cotton to Campbell, and the proceeds of sale belonged to them, and not to any other person, they must find for the plaintiffs. The court refused, on request of claimants, to charge the jury, if they believed from the evidence .the claimants were commission merchants, and sold the cotton to Campbell, a cotton buyer, and he had not paid for the cotton, he did not acquire ownership thereof. To the charge given, and the refusal to charge, exceptions were reserved. The sale to Campbell was for cash, but according to the usages of trade, he had three days to examine the cotton before paying for it, which had not expired when the levy was made.
The statute (B. C. § 1164) provides: “No cotton sold by commission merchants to brokers or buyers shall be con
Charges given or refused must be construed, and their correctness determined, by connection with the evidence to which they are applied. A charge to the jury, that they may draw an inference opposed to all the evidence, is erroneous. Carey v. Hughes, 17 Ala. 388. Or, a charge that they may infer a fact of which there is no evidence, is erroneous. Thus, that the jury could infer from the acts of the-creditor, that sureties had knowledge of, and assented to an extension of the day of payment to the principal, no evidence of such knowledge or assent having been given, was error. Everett v. U. S, 6 Port. 166. It may be true that though the business of the claimants was that of commission merchants, yet, if in the sale to Campbell they were not pursuing that business, but were acting outside of it, and in an entirely different capacity, a delivery to Campbell would have invested him with title to the cotton. But there was no evidence of such a state of facts; on the contrary, all the
The chai’ges x’equested by appellants asserted correct legal propositioixs, and should have been given. It xvas certainly the law, as asserted by the counsel for'the appellee, and is yet generally, that the lien of a factor or commission merchant continued only so long as he has possession, and if he parts Avith possessioxx after the lien attaches, the lien is lost. The rule has no application to a sale of cotton made by a commission merehaxxt, to a broker or buyer, since the statute. The operation of the statute is to preserve the lien, as it preserves the title, certainly so far as the broker or buyer and the factor or merchant are concerned, whatever might be the effect, if the principal regained possession, without the possessioxx of the factor intervening.
It is said, however, that if the claimants had no other right or interest in the cotton than as commission merchants, holding it for sale, with a lien for advances, the title residing in Fariss & McCurdy, their px'iixcipals, the claim should have been made by the latter, and the claimants eaixnot interpose such title to defeat the levy of the attachment. We have already said the claimant must recover on the strength of his OAvn title, and that to defeat the levy he cannot set up the outstanding title of a stranger. Rut a title Avhich would authorize the claimant to support the corresponding common law remedies of trespass, trover or detixxue, will support a claim under the statute. Any bailee could support either of
The judgment must be reversed, and the cause remanded.