Greene v. Tims , 16 Ala. 541 ( 1849 )

CHILTON, J.

1. We cannot conceive what interest the witnesses, Lancaster and Sheppard, had in this controversy. They had, it is true, entered into an informal delivery bond payable to the sheriff, conditioned to have the slave forthcoming to answer and satisfy the judgment of the plaintiff in attachment ; but allowing that the bond was good as a common law obligation, it is very certain that the condition was fully complied with, when the property was forthcoming to to be "íéVied upon by the execution, issued on the judgment. The exfecqtiqn -has been levied, and the sureties put in no default, so that fliey must be considered as completely discharged from áll liiibjlirf' under it, if any ever attached. They were therefore clearly competent witnesses, and this assignment of error ' caiinot'-prevail.

2. As/to the supposed waiver of the lien upon the slave in Controversy, as shown by the proof of Lancaster andjBurwell, we think the court very correctly instructed the jury that the claimant could not avail himself of it. He was a stranger to the agreement — was not induced to act upon it so as injuriously to affect his interest, and as he was in no way connected with it, or affected by it, he should not take advantage of it. It rvas an arrangement between Burwell and Lancaster and Goodwin to induce the two former to go on a claim-bond for the younger Batte, and 'úthey do not insist upon the agreement, it is clear that Greene, the claimant, cannot.

3. But it 3s said that the plaintiff in the attachment lost his lien by ihe manner in which he has prosecuted his claim upon the property; 1st — Because he proceeded when no claim-bond was given; 2d — That the slave was permitted to go back into the possession of the defendant in the attachment; 3d— That the case was retained many years on the docket, having been continued six times by the general order of court, and five times by the consent of the parties ; 4th — That Goodwin was aiding in the meantime the younger Batte, who was then claiming this slave as exempt from the attachment, in obtaining security upon a claim-bond, so as to prevent other creditors of the elder Batte from selling his slaves, and promising-even to release his lien on the slave so as to procure sureties for him. It cannot be assumed as a conclusion of law from any or all of these facts, that the lien was lost. They would, however, have been proper for the consideration of the jury, in determining the question (had the claimant shown his right to raise it, of which we will hereafter speak,) whether the plaintiff in the attachment was prosecuting his claim to a condemnation of the slave to the satisfaction of his demand in good faith, or, on the other hand, whether the levy and subsequent proceedings were not designed as a mere blind to keep off other creditors from proceeding against the prou as fraud vitiates the most solemn judgments of cc tice, it is very clear that if such litigation was cc carried on for the covinous purpose last above reí proceedings under the attachment and judgment nation could not be successfully urged against a ; ditor, who, in the meantime, had levied upon slave, nor against a purchaser who could claim the pre of such judgment and sale. It was the duty of the sheriff to have taken a claim-bond before parting with the possession of the property. His return upon the attachment, on w-hich the plaintiff had the right to rely, asserts that he did take such a bond, and the claim was thereupon prosecuted, as we have before stated. Now the plaintiff in the attachment, if there was no fraud or collusion between him and the claimant, should not be stripped of his lien by the unauthorised act of the sheriff, to which he never consented, so far as the proof discloses. — 4 Ala. Rep. 357; 14 ib. 232.— In Patton v. Hayter, Johnson & Co., 15 Ala. Rep. 18, the plaintiff actively interfered and ordered the-delay, and thus lost his lien. But if we concede that the plaintiff in tile attachment, by reason of the manner in which the claim was interposed and prosecuted, and the return of the properly to the defendant in the attachment, lost the lien as against other bona fide. creditors of the elder Batte, who had caused their executions to be levied, how is the plaintiff in error to be benefitted by the concession? His counsel inform us that he bought the slave under a sale made upon a fi. fa. issued on a judgment against Batte sr. in favor of Fareinholdt, and that the slave was levied upon and sold while in possession of the Elder Batte, and pending the trial of the right of property between Tims, use, &c., against Batte jr. However correct all. this may be, the record, by which alone we must be governed, says nothing about the manner in which Greene purchased or claimed title to the slave, or of any levy upon him by any creditor, save the defendant in error.

4. The charge of the court to the jury was, “ that if they believed from the evidence that the boy Captain was the same ■boy that had been attached and condemned in the trial in which Thomas Batte jr. was claimant, then they should find for the plaintiff in execution.” Now had the claimant shown that he was abona fide purchaser under a sale made by execution upon the judgment of another creditor, as his counsel insist, then we are clearly of the opinion that this charge, which in effect forestalled the inquiries of the jury as to the bona fides of the proceeding, which resulted in a condemnation of the property, and consequent preservation of the lien, would have been erroneous. The claimant then should have shown his right to have contested with the defendant in error the effect of the judicial proceedings upon which the plaintiff in execution relied, and in respect to which the court gave the charge complained of. It is manifest, the charge may or may not have been correct, as the facts may have justified or forbade it; and in such case, it is incumbent on the party who complains of the charge to show that as applicable to the case made by the facts, he has been illegally and injuriously affected by it. Taking the proof, which is set out in the bill of exceptions, as being all that was offered, and the charge is certainly correct; for the proof leaves the claimant without shadow of title, and does not even show that he had possession of the slaye. On the other hand, the plaintiff shows the levy of the attachment upon him in the possession and as the property of the elder Batte, his condemnation on the trial of the right of property to satisfy the attachment, and a subsequent levy of the execution issued upon the judgment obtained on the attachment. The doctrine of legal intendments and presumptions forbids us to presume that there was other evidence which would have rendered the charge erroneous — the maxim being omnia prmsumuntur rite et solemniter esse acta. In Peden v. Moore, 1 S. & P. 71, cited by the plaintiff’s counsel, the court charged the jury, “ that unless a total failure of consideration was proved they should find for the plaintiff” thus asserting the erroneous legal proposition that the defendant could not avail himself of a pardal failure of consideration. The Supreme Court refused to consider the charge as abstract, but reversed the cause upon the presumption that there was evidence as a predicate for the charge. The same may be said of the decision in Rowland v. Ladiga, 9 Porter, 488. In that case the Circuit Court in its charge embodied the facts upon which it was predicated, and on which the erroneous charge was founded. In Dukes v. Lowrie, 13 Ala. Rep. 459, the charge as an abstract proposition of law, was incorrect, and we presumed it was not abstract. In the case before us it is very different. Here, the charge, as we have before stated, must be refered to the evidence to determine whether it is legal or otherwise, and thus considered, it is free from objection.

5. Pending the examination of the witnesses, the bill of exceptions recites that the counsel insisted the defendant in error had lost his lien, for the reasons above refered to, and the court ruled that the judgment of condemnation was conclusive as against a purchaser from the elder Batte, or under execution against him pending the trial, &c. This was the mere expression of an opinion by the court in the progress of the cause — was not given as a charge to the jury, nor does it appear that the opinion was intended for their hearing. We cannot look to it as a ground for reversal, but must regard it as a mere expression of an abstract opinion in response to the suggestion of counsel. Had the opinion thus expressed been given in charge to the jury, it would, for the reasons we have previously stated, have constituted a ground for reversal,

We are unable to discover any error in the record, and the judgment of the Circuit Court must be affirmed.