137 So. 308 | Ala. | 1931
The appellant, Moody, instituted an attachment suit against Leech Looney Brothers, a partnership, in aid of an action on promissory notes. The sheriff levied upon certain personal property, a ginning outfit and a truck, in the possession of the defendants. The defendants replevied the property by giving bond with the appellee, United States Fidelity Guaranty Company, as surety.
The levy was made September 28, 1929. On March 7, 1930, a consent judgment was rendered against the defendants for the amount of the debt, and the property levied upon was condemned to the satisfaction of this judgment. On March 17, 1930, defendants notified the sheriff in writing that the gin property had been taken from them by superior title. On May 8, 1930, the sheriff returned the bond marked forfeited, and execution was issued against the surety on the *509 replevy bond. The appellee, surety, thereupon filed a petition to be relieved of the forfeiture, upon the asserted ground that the gin property levied upon was subject in part to a conditional sales contract and in other part to a mortgage, both of which instruments were in default at the time of the levy, and that under them the property had been taken from the defendants in attachment.
A hearing was set and evidence taken, after which the trial court entered a judgment finding in agreement with the averments of the petition, declaring that the levy upon the gin outfit was void, quashing the execution, and setting aside the forfeiture on the bond. The truck was held to be subject to the levy, and no question as to it is involved on this appeal.
The evidence offered on the hearing shows that the conditional sales contract, under which a part of the gin outfit was sold to the defendants in attachment, was executed August 9, 1928, and recorded September 25, 1928. By its terms title was retained until payment of the purchase price, represented by two notes, the first of which matured November 1, 1928, and the second one year later, and a default in installment accelerated the entire amount due. This contract was assigned and transferred to P. H. Leech December 26, 1929.
The mortgage referred to was executed January 30, 1928, and recorded March 23, 1928. It secured an indebtedness maturing December 20, 1928, and covered a part of the gin outfit levied upon as well as the land upon which the gin was located. This mortgage was likewise transferred and assigned to said P. H. Leech, the date of such transfer being December 23, 1929. It appears that P. H. Leech foreclosed this mortgage and himself became the purchaser at the sale. The foreclosure deed bears date February 17, 1930.
As stated above, the trial court adjudged the levy on the gin property to be void, and, in support of that holding, appellee cites the case of Thompson v. Thornton,
In the case of Lovelace v. Webb,
But, in the case of Gassenheimer v. Molton,
Since the Code of 1852, it has been provided by statute that the equity of redemption in either land or personal property is subject to levy and sale under execution.
The case of Thompson v. Thornton,
But a different rule exists when property is sold under a conditional sale contract by which the vendor retains the title until the purchase money is paid. Under such circumstances the purchaser does not possess an equity of redemption. But if the contract provides for his possession until default, he has, until such default, a special property interest which may be sold under execution, but not so after default. Fields v. Williams,
Section 6188 of the Code provides for the levy of an attachment "on personal property of the defendant." We think that certainly extends the right to such interests in personal property as are subject to levy and sale under execution. Section 7806, Code.
The result is that the levy of the attachment on personal property, which the defendant had purchased under a conditional sale with title reserved in the seller and duly recorded, was, after default by him under its *510 terms, void and was properly quashed, but that the levy on personal property which he had mortgaged, but in which he had an equity of redemption, was not void but was justified by the statute.
Another principle important in this case is that when a defendant in execution or attachment executes a forthcoming bond and retains possession of the property, and pending such possession it is taken from him under a paramount title or lien, or valid judicial proceedings, without collusion or fraud, the bond is discharged in so far as there may be default thereafter in a return of the property. Bolling v. Vandiver,
If the defendant permits such paramount claimant to seize the property without judicial proceedings, the burden is upon him to show that such claim was paramount to the lien of the levy, and that he could not have resisted legal proceedings instituted against him for its recovery.
Since the court held that the evidence showed that the property was taken under separate claims and rights superior to the lien of the levy, and which claims defendants could not resist in judicial proceedings, and no fraud or collusion is shown, the court properly relieved the sureties from liability in execution issued upon a return of the forfeiture of the bond.
The statement made in Fleming v. Moore,
Those cases cited by appellant to the effect that a surety is estopped from contradicting the terms of a replevy bond are not apt here. The assertion that the property was taken under paramount title, rendering defendants powerless to return the property, is not a contradiction of the terms of the bond.
We have treated the only questions insisted upon in brief. Finding no error, the judgment is affirmed.
Affirmed.
ANDERSON, C. J., and GARDNER, BOULDIN, and FOSTER, JJ., concur.