Dryer v. Abercrombie , 57 Ala. 497 ( 1877 )

STONE, J.

1. The issue in our statutory proceeding, which we denominate a trial of the right of property, is an .averment by plaintiff that the property is subject to the execution [or attachment, as the case may be], and a denial of the truth of that averment by the claimant. On such issue, as a general rule, the inquiry, whether the defendant in execution or attachment is indebted to the plaintiff, is foreign and immaterial. The inquiry usually is,, did the defendant in the execution or attachment, at the time the lien accrued, or the levy was made, own such property in the goods as is ■the subject of levy and sale under the process^?—See Pulliam, Willis, Rankin & Co. v. Newberry, 41 Ala. 168, 175, and authorities cited; 2 Brick. Dig. 479, 480, §§ 63, 67, 69, 70, 71, et seq. Such is the rule where the right to sue out the attachment is not at all dependent on the character of the debt, to collect which it is resorted to; debts which exert no lien, till execution is delivered to the sheriff, or, till attachment is levied. — Code of 1876, §§ 3252-3. These attachments lie to enforce any debt, money demand, or just claim for damages, and may be sued out on any one of eight distinct grounds. Attachments thus sued out can not be quashed, abated, or dissolved, on proof that none of the eight grounds for suing it out in fact existed. If there be a debt .or legal liability, the plaintiff will be entitled to judgment, no matter how groundless his attachment. — Code of 1876, -§ 3317.

2. But there are other liens, enforceable by attachment, which rest on entirely different principles from those we have been discussing. Such liens do not depend on the levy of ..attachment for their existence. They exist by law, and attachment is given as a remedy for their enforcement. They depend on the existence and nature of the debt; and attachment is given only as a means of securing and preserving the property, and subjecting it to the debt for which it thus stands encumbered under the statutes. The former confers the lien; the latter simply enforces it. Sections 3286 and 3467 declare liens of the latter class. Attachment for enforcing these law-given liens is given by sections 3472 and 3288 of the Code of 1876; sections 2961 and 1860 of the the Revised Code.—See Wilkinson v. Ketler, at present term. The grounds for suing out the attachment for enforcing these liens were formerly only two ; they are now three. It will be seen that they are entirely different and less comprehensive than those for which ordinary attachments will lie. But the character of the demand enters into the ground of the attachment. It must be a debt 'which the statute declares operates a lien on the property levied on; and if it be not such debt, then, although one or all the grounds for such attachment maintained in section 3472 may exist, the attachment would be improper; and on motion made and proper proof, the attachment would be dissolved on the single ground that the debt was not of a class for which such attachment would lie.—Brown v. Coats, December term, 1876.

3. J. C. Abercrombie sued out an attachment against Smith, for rent and advances alleged to be due for 1876, and had the same levied on cotton alleged to have been grown on the rented land, during that year. Dryer interposed a claim under the statute. Dryer’s claim rested on a mortgage executed by Smith to him, bearing date March 4, 1876,. and recorded in th.e probate office of the county two days afterwards. This mortgage conveyed the crop to be grown that year to secure the payment of certain recited debts. To the extent that the statutes in force at the time conferred the right, Abercrombie had a first and paramount lien on the crop grown on the land rented to Smith. Subject to this-paramount first lien of Abercrombie, if shown, Dryer’s mortgage, if based on a debt from Smith, would come in as a second lien. If Abercrombie’s paramount lien had been previously discharged by payment; or, if he had received of the crop grown on the land enough to discharge this paramount lien, and had applied it to any other debt or use, then, so far as Dryer was concerned, Abercrombie’s lien was canceled, and Dryer’s lien would come next in play; and whether Smith defended the attachment suit or not, this could not affect or impair Dryer’s rights. It was res inter alias aeta... The testimony offered by Dryer, tending to show that Abercrombie had been paid for his rent and advances, should have been received. It tended to negative the ground on which his attachment and right to the property rested — namely, the existence of a debt which operated a lien on the cotton, paramount to Dryer’s mortgage lien. It was correctly said in Tucker v. Adams (52 Ala. 254), that in the trial of a suit commenced by attachment, it is not permissible to disprove the truth of the ground on which the attachment issued. That is not the proceeding to reach such defect. The questions of merit in that ease and in this are entirely different.

Reversed and remanded.