Carter v. Wilson

MANNING, J.

This was a trial of the right of -property, for a bale of cotton seized under an attachment issued to enforce a crop-lien under the statute upon that subject. Appellee, Carter, was plaintiff in the attachment suit; one Harvey was defendant; and appellant, Wilson, claimed the cotton as his — and from the verdict and judgment adverse to his claim of ownership, he appealed to this court. The controversy is between him and the plaintiff in the attachment suit.

The assignment of the overruling of the demurrer of the claimant to the issue tendered by plaintiff upon the trial of the right of property, as an error, has no basis to rest upon in this transcript of the record of the Circuit Court. The recitals in a bill of exceptions, it has been several times, ruled, can not be regarded by us as showing what judgments were rendered in that court. Its judgments upon demurrers to be valid, must be entered on the minutes of the court— the record it keeps of its daily proceeding. There is no copy in this transcript of any such minute entry of a judgment upon the demurrer. The correct practice, though in forming the issue upon a trial of the right of property, is that indicated by the statute. It was sufficient for plaintiff to allege, and better that the cotton attached was the property of defendant in the attachment, and liable to seizure under it. Under this he would be authorized to make proof of his crop-lien, and right to an attachment, if entitled thereto, by reason of the lien having been acquired for advances he had made.

As we said in Boswell & Wooley v. Carlisle, Jones & Co., 55 Ala- 554, ordinarily, an attachment lien begins from, the time of the seizure, or levy upon the property. But this is not true of a crop-lien which the process of attachment is used only to enforce. This lien began before the writ was issued- — -it was created by a compliance with the terms of the statute by force of which it exists. Hence, if a claimant of produce attached as subject to a crop-lien, prove a title and right of possession thereto, ante-dating the levy of the attachment, the plaintiff in the action must go back and produce evidence of his crop-lien which will show it to be older than, or superior to the right of the claimant, and a lien which he has a right, (in the language of the statute,) “ to-enforce,” by that writ.

The writ of attachment in this cause, sued out by Carter in November, 1871, was in that month levied upon the cotton in controversy as part of the crop made by Harvey in that year. But the cotton was then and before, in possession of claimant, Wilson, as a purchaser of it from one Wade. Wade asserted a right to it under an instrument made by Harvey, January 1st, 1871, which is set out as exhibit B, in the bill of exceptions, and was intended to create a crop-lien on Harvey’s crop of 1871, but did not have that effect, both because not in proper form, and because not given to secure advance to enable Harvey to make a crop.. It is capable though of operating as an equitable mortgage for the payment of the pre-existing debt which the instrument was made to secure. And if (as it was admitted he would testify,) Wade obtained the cotton from Harvey with.. the consent of the latter, to pay his debt with, this would: give to Wade or to Wilson, the purchaser from him, such a possession and right of possession as -would enable him to maintain his standing as a claimant in the statutary action of the “ trial of the right of property,” and put the plaintiff in the attachment to proof of his superior crop-lien, and of his right to enforce it, according to the statute, by attachment. In fact, the situation of Wilson would be very nearly the same as that of Carter was in the case of Abraham v. Garter, (53 Ala. 8), in which Carter was claimant, and where this court said: “ The transfer of S. G. & W. to the claimant, of the statutory mortgage made by Williams, gave him in a court of equity, all the rights of his transferrors. When the mortgagor delivered to him the cotton which was the subject of the mortgage, this equity was coupled with possession, and gave him a title on which he could maintain trespass, detinue or trover against any one who should disturb his possession. — Bryan v. Smith, 22 Ala. 534. A trial of the right of property under the statute, is a cumulative remedy to these actions, and may when personal property is seized under legal process, be maintained whenever these actions would lie against the officers making the seizure.” — See also, Boswell v. Carlisle, supra; and Smith, Administrator, v. Brown, Administrator, (in manuscript.)

In the present cause, therefore, Carter as plaintiff in the litigation, in making out his case, would be compelled to produce and rely upon the instrument executed by Harvey to Tatum & Wilkinson, and by them assigned to him, Carter. And this brings up the question, whether as their assignee, he succeeded to their right of suing out a writ of attachment, and by virtue of it, seizing the crop made by Harvey. In regard to this, we are not able to perceive that it differs from the like question in relation to the assignee of a rent-note given to a landlord, which arose in Foster v. Westmoreland, 52 Ala. 223. It was therein held that the extraordinary remedy by attachment allowed to the landlord could not be asserted by the assignee of the rent-note. We feel compelled to hold that the same ruling is applicable in the case of an assignee of a note or obligation creating a crop-lien. The law expressly provided (Revised Code, § 1860), that the person having such a lien, (meaning, as we understand — the person to whom it is given,) “ shall have the same rights and remedies to enforce such lien as landlords have in this State, for the collection of rents.” This enactment seems to make the decision in Foster v. Westmoreland the more applicable.

According to the views above expressed, the circuit judge erred in his charge that — “ even if claimant purchased the cotton from Isaac Wade, such purchase would not convey any title to claimant, unless it was shown that such sale was made under attachment sued out to enforce the alleged lien of said Wade.” If the jury believed from the evidence that Harvey executed the instrument represented by Exhibit B., to secure payment of a debt he justly owed to Wade, and in September or October afterwards delivered the bale of cotton in controversy, a part of the crop made by him that year, to Wade, for him to sell and pay the debt due to him, and he sold it to Wilson, — these acts conferred upon Wilson a title which would enable him to maintain his claim in this action, against a plaintiff' who was not entitled to have it taken from him by attachment.

The court would have erred also in refusing to give the charge marked 4 (6) if it was in writing when asked; which does not appear.

There was no error in allowing evidence that the instrument marked Exhibit B., was not executed to secure the repayment of money advanced to make a crop with. Carter or his assignors not being parties to it, had the right to prove its recitals to be false.

It was in the discretion of the court to permit the writ of attachment and sheriff’s return thereon to be introduced in evidence before the retirement of the jury.

For the errors indicated the judgment of the Circuit Court must be reversed, and the cause be remanded.