Shahan v. Herzberg, Simpson & Co.
73 Ala. 59
Ala.
1882
Check Treatment
BRIOKELL, C. J.

— -In a trial of the right of property levied on by execution, or by attachment, the issue is, whether it belongs to the defendant and is subject to the process. The affirmative of the issue, and the burden of proof, the statute devolves on the plaintiff in the process (Code of 1876, §§ 3342-5), who is regarded as the actor in the suit. — McAdams v. Henderson, 34 Ala. 478. But if he introduces evidence having a tendency to show, and which prima facie shows, that the title resides in the defendant, the onus of proof shifts to the claimant, and, in that event, he must support his claim upon the strength of his own title — he must show in himself a legal title which would support the action of trespass, or of trover, or of detinue, if he were a plaintiff in either action, seeking to recover damages for the taking or conversion of the property, or to recover the property itself. — Foster v. Smith, 16 Ala. 192; Lehman v. Warren, 53 Ala. 535. The fact of title is ordinarily shown by evidence, that, at the time of the levy, the property was in the possession of the defendant: — possession ■ unexplained being prima facie evidence of the ownership of personal property. If the possession at the time of the levy is in a stranger, or in the claimant, the title of. the defendant may be proved, as he *63would, be compelled to prove it, if he were the actor, subject to the burden of proof.

The general rule in reference to the relevancy and admissibility of evidence is, that facts and circumstances which, when proved, are incapable of affording any reasonable presumption or inference as to a material fact involved in‘the issue, ought not to be received. In other words, evidence ought to correspond to the issires; and facts and circumstances which do not tend, directly or indirectly, to prove or disprove them, can not be admitted. — State v. Wisdom, 8 Port. 511; Governor v. Campbell, 17 Ala. 566. Subjected to this test, the evidence of Herzberg, and of Cowan, to which objection was taken, was not admissible. It had no tendency to show that the title to the cotton was in the defendant, or that the cotton was liable to the attachment. If it had upon these inquiries any bearing whatever, its tendency was to show that the defendant in attachment had parted with all interest in the cotton, upon the promise of Caleb Hope, that he would pay the debt owing to the plaintiffs. If such a promise was made, under circumstances that it would enure to the benefit of the plaintiffs, the remedy for its enforcement was a direct suit against the promisor, and not by a suit against the defendant and a levy upon property, with which he had parted upon the faith of the promise. There was error in the admission of the evidence— it was foreign to the issue, and calculated to divert and distract the attention of the jury from the real point of inquiry and the facts bearing upon it.

If a tenant, before the expiration of the term, abandons the premises he has leased or rented, the landlord is not bound to let them remain vacant, but may re-enter and occupy himself, or may lease to another. — Schuilser v. Ames, 16 Ala. 73 ; Wheat v. Watson, 57 Ala. 581. And during the term, the tenant may surrender to the landlord, thereby terminating the lease and all its incidents. Any acts which are equivalent to an agreement on the part of the tenant to abandon, and on the part of the landlord to receive possession of the leased premises, is, in legal contemplation, a surrender. — Talbot v. Whipple, 14 Allen, 177. The facts of this case, independent of the express agreement between the landlord, Caleb Hope, and the tenant, William Hope, the defendant in attachment, are clear and unequivocal, leaving no room for doubt, that the lease or contract of renting was abandoned, and that such was their intention. The tenant leaves the premises, while the crops are being cultivated, and when further labor and expense must be employed, not only in cultivating, but in gathering them; with no purpose to return and to bestow such labor and expense, but with the purpose that the landlord should receive possession, cultivate and gather *64the crops, and, if possible, reimburse himself for the advances he had made, and for the rent. The landlord re-entered, cidtivated and gathered the crops, and thereby treated the tenancy as having terminated. But independent of these facts, which show a surrender of the lease, the express agreement of the parties operated a surrender, terminated the right of the tenant further to occupy, and conferred upon the landlord the right to receive possession. It was not to the mere use and occupancy of. the lands the landlord succeeded upon entering. The growing crops passed to him as incident to his restoration to the possession and to the termination of the tenancy. There was no right or interest in them remaining to the tenant.— Wheat v. Watson, supra. It results that the circuit court erred in giving to the jury the second instruction requested by the plaintiffs, and in the refusal of the second instruction requested by the claimant.

We have already said that a claimant in this proceeding must recover upon the strength of his own title, and' the title upon' which he relies must be such as would enable him to maintain trespass, trover, or detinue, to which this proceeding is in many respects analogous. Laying out of view any'rights which may have accrued to the claimant as landlord, possession of the cotton for specific purposes had been entrusted to him by its owner. When the owner of goods transfers to another the possession of them for a particular purpose or use, a bailment in its most usual and ordinary form is created. The general property resides in the bailor, the immediate possession, and a temporary or qualified right reside in the bailee. For an injury to the property while in his possession, or for any invasion of the possession, the bailee .may sue the wrongdoer in his own name — he may maintain trespass, case, trover or detinue, as the one or the other may be the appropriate form of action for the particular injury. Hare v. Fuller, 7 Ala. 717; Cox v. Easely, 11 Ala. 362 ; McGill v. Monette, 37 Ala. 49; Lehman v. Warren, 58 Ala. 535. The right to sue is derived not only from the fact of possession, which is prima faeie evidence of title, and must prevail against a wrongdoer who can not connect himself with a higher and better title, but it must be conceded because of his liability account to his principal for the goods. Such liability, it is plain, rested upon the claimant, and he had the clear legal right to interpose in his own name a claim to the cotton. The claim ■ must prevail over the levy of the attachment, unless it is shown that, at the time of the levy, the defendant had the title to the cotton.

We do not notice the instructions given or refused in reference to a sale to the claimant. The facts do not show a sale, and these instructions are abstract, and, to say the least, have a *65tendency to confuse and mislead the jury. A bailment is however shown — a bailment that the cotton should be shipped, and the proceeds of sale accounted for to the bailor. The bailee had, of necessity, a qualified title, connected with the possession, for the purpose of carrying the bailment into effect; and this entitles him to maintain the claim he has interposed, unless a superior outstanding title is shown in the defendant in attachment. There are several rulings of the circuit court not consistent with this view.

Beversed and remanded.