The appellees in this case instituted an action in detinue against the *Page 290 appellant for the recovery of a mule, the complaint being in Code form; and the appellant did not file the plea of the general issue or non detinet, but filed a special plea, claiming in substance that he was the landlord of his son, James Hammock, and as such had purchased for him to make a crop with two mules; that James Hammock had traded or exchanged one of these mules for the mule in controversy; that James Hammock had never paid him for the two mules sold him; that thereafter the defendant filed suit in attachment at his instance, as landlord, against James Hammock, as tenant, to enforce his lien, which was levied on the mule in question; that the mule had been delivered to the defendant "to hold and keep as agent for the said sheriff, pending said attachment suit, and at the time this suit was filed the said defendant, as agent and deputy, held said mule for the sheriff, and did not hold the same in his own right; and that was the possession held by this defendant at the time of filing this suit, and he avers his possession was no more than the possession of the sheriff under said attachment writ, and no more." The appellees testified that at the time of filing the suit in this case appellant was in the possession of the mule sued for.
The filing of this special plea, without the filing of the general traverse or denial, was a confession of the allegations of the complaint, and relieved the plaintiffs of the burden of offering proof to sustain them. Zadek v. Forcheimer, 16 Ala. App. 347,77 So. 941; H. H. Hitt Lumber Co. v. Turner,187 Ala. 56, 65 So. 807; Dockery v. Day, 7 Port. 518; Lucas v. Stonewall Ins. Co., 139 Ala. 487, 36 So. 40; Berry Lumber Co. v. Ganer et al., 142 Ala. 488, 38 So. 243; Miller v. Johnson, 189 Ala. 354, 66 So. 486; Ray v. Fidelity Fire Ins. Co., 187 Ala. 91, 65 So. 536.
It may be conceded, which is not decided, that the court erred in not excluding the mortgage in evidence by the appellees; but it was not necessary, in view of the above, for the appellees to have introduced a mortgage, or anything else, for under the issue as made up plaintiffs' title to the mule was admitted, and the only question for this court to determine is: Did the appellant prove his plea?
The gist of the plea seems to be that set out in quotations above. When the sheriff levied on the mule under the writ of attachment to enforce appellant's landlord's lien, and took the property into his possession, from that moment it was in gremio legis, and the fact that the appellant made a replevy bond did not destroy or impair the lien. The levy of the attachment created a lien. There was no denial of the allegations of the plea that the appellant was holding the mule as the agent or bailee of the sheriff, and, this being so, the appellant was entitled to recover. Kyle v. Swem, 99 Ala. 573, 12 So. 410. So it appears from the pleading and evidence in the case that, as tried, the court committed error in rendering judgment for the plaintiffs, and the cause must be reversed.
Reversed and remanded.