51 So. 560 | Ala. | 1910
— The defendant, Snellgrove, who is the appellant, was sued by the plaintiff, John Evans, in an action of detinue for two horses. The defendant claimed title by virtue of a livery stable keeper’s lieu for the feed and keep of the horses, under section 2774 of the Code of 1896. The plaintiff, Evans, claimed under a subsequent mortgage alleged to have been execute*! to him by the owner of the horses, one P. H. Snow, dated September 19, 1903, due November 1, 1903, for the sum of |135, payable to the plaintiff, Evans, embracing the two horses sued for, and he insists that under the circumstances he was a bona fide purchaser for value of the horses. “The rule as to proof of bona fide purchase is that'the party pleading it must first make satisfactory proof of purchase and payment. This is affirmative defensive matter, in the nature of confession and avoidance, and the burden of proving it rests on him who asserts it. This done, he need go no further than prove he made such purchase and payment without notice. — Barton v. Barton, 75 Ala. 400. Neither will the mere recitals of the conveyance establish the consideration, which must be established by proof independent of said recital or- declaration.” — Snellgrove v. v. Evans, 145 Ala. 603, 40 South. 567.
The plaintiff attempted to make this proof.- on this trial by two distributees of the estate of the mortgagor, Snow, viz., Ella and Sarah Snow. Their evidence was taken by deposition, on interrogatories filed to them,
Defendant further testified that he presented his claim for the feed of the team, fully itemized, to Wash-burn, Snow’s administrator, and demanded his pay; that the administrator failed to pay it for more than 10 days, and thereafter he advertised the horses for sale and sold them for the satisfaction of his debt; that they brought, one $1.00, and the other $95, and they were not worth over $100 each, and their use was not worth over $50 per annum. Washburn, the administrator of Snow, testified to substantially the same thing. The correctness of Snow’s account for keeping the horses, amounting to $189, was admitted by plaintiff to be correct.
The foregoing opinion was prepared by Justice Haralson, but fails to receive the concurrence of the court. It is, however, expressive of the views of Justice May-
Affirmed.