On Rehearing. It is earnestly insisted that there is conflict between the holding in this case and in the case of Landers v. Moore et al., 21 Ala. App. 12, 106 So. 223, affirmed by this court in214 Ala. 20, 106 So. 225. We do not think so.
In the Landers' Case, supra, an attachment had been issued and levied upon certain personal property, consisting of "one saw mill, one boiler, one steam engine, one ledger and one trimmer, constituting a complete saw-mill." Landers filed a claim suit, seeking to establish his right to the property under a purchase from the defendant in the attachment suit.
On the trial of the attachment suit, the plaintiff introduced in evidence the record of the attachment suit, going to show that the writ of attachment was levied upon the property in controversy by the sheriff; that written notice of the levy was duly served on defendant, and the court rendered judgment for plaintiff and against defendant, in the attachment suit, condemning the property to be sold for satisfaction of the judgment. It was after the issuance of venditioni exponas, and levy thereunder, that the claimant attempted to defeat the attachment proceedings by showing that the sheriff did not take possession of the property, but allowed it to remain with the defendant after the alleged levy; that after the alleged levy the defendant in attachment had removed the property from its then position to another place. And that, after its removal, claimant had bought the property.
The claimant's contention was that, if there was in fact a valid levy, the same was abandoned, and the lien lost. The real contention in the case was over whether or not the levy was abandoned, and the lien lost on that account. On the question of whether there was in fact a levy, the court held that the writ as to strangers to the process is prima facie evidence of the facts stated in the return, and, as between the parties to the process and their privies, it is conclusive, and may not be impeached by parol testimony.
The case now before this court presents quite a different question. The complainant charged that the crops were grown on premises rented from it, and there is a total failure to prove this averment. The fact that the sheriff levied upon certain produce is not denied, but the burden was upon the complainant to prove the averments of the complaint, and we hold he failed to discharge the burden.
There is nothing in the other questions presented which call for further consideration.
Application for rehearing overruled.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.