Ryall v. Smith

| Ala. | Nov 15, 1902

HARALSON, J.

The case was tried on the plea designated iii the record, page 7, as 1-4, -where it is copied in full. It is also set out in the bill of exceptions.

In respect to suits of this character, when title to property is claimed through an impounding under the statute establishing a stock district in which stock is not allowed to run at large, the burden is on him who claims under such title to show affirmatively that such statute has been strictly complied with. — Ryall v. Epps, 122 Ala. 662" court="Ala." date_filed="1898-11-15" href="https://app.midpage.ai/document/ryall-v-epps-6518164?utm_source=webapp" opinion_id="6518164">122 Ala. 662; McCrossin v. Davis, 100 Ala. 631" court="Ala." date_filed="1892-11-15" href="https://app.midpage.ai/document/mccrossin-v-davis-6515423?utm_source=webapp" opinion_id="6515423">100 Ala. 631.

The evidence in this case tended to show without conflict, that the property sued for belonged to the plaintiff, and unless the sale of it by the defendant under the act, “To prevent stock from running at large in certain parts of Marengo county,” (Acts, 1892-93, p. 492), divested the title out of him and into the defendant, the plaintiff was entitled to recover.

The statute requires that “if the owner of the impounded stock is not. known, notice shall be.given in twenty-four hours, by posting notice in three public places in the neighborhood in which stock is impounded; such notice shall describe said stock, giving marks and brands, and state, that unless such stock is •claimed by the ower thereof, it will be sold at some particular public place in the neighborhood, on the eighth ■day after the date of said notice.” The notice in this •case, which is set out in the plea, describes the stock as “one brown steer calf, marked, smooth crop in each •ear.”

The plaintiff, after testifying that the steer in dispute was his property, gave its marks as “smooth crop, split ■and an underbit in each ear.” The defendant also testified that such were the marks of the animal. The proof, therefore, failed to show that the notice of sale gave the marks as required by the statute, but it did show that the real marks were different from the one given in the notice for sale.

Furthermore, the notice was dated May 23d, 1.901, and stated that “unless steer is claimed by the owner, it will be sold eight days after the date of this notice, at the P. O., at Old Spring Hill, Alabama,” and the proof shows, without conflict, that it was sold on the first Saturday in June thereafter. That day was the 9th day after the 23d of May, the day after the day the notice gave as the one on which the steer would be sold. The sale was inoperative, therefore, to convey the title to the purchaser at such sale, and the court erred in refusing to give the general charge as requested by the plaintiff.

Reversed and remanded.