Hurt v. Redd & Co. , 64 Ala. 85 ( 1879 )

BRICKELL, C. J.

The mortgage is of “ fourteen mules, now ” (at the time or date of executing the mortgage) “ on my ” (the mortgagor’s) “ plantation in Russell county, Alabama.” It was sufficiently specific and certain. The number of the mules is stated, and the place at which they would be found Parol evidence that the mortgagor had but one plantation in Russell county, and had there only fourteen mules, rendered the property, on which the mortgage was to operate, definite and certain, capable of positive indentification.

2. An attachment was levied on the mules, and other personal property of the mortgagor, before the registration of the mortgage. By the levy, a lien was acquired, which had priority over the mortgage. A sale of the property, as perishable, was made by the sheriff, under the levy of the attachment ; and the proceeds of sale, with the attachment, were returned into court, the aggregate of the sale being $733.93; of which sum $623.50 was the price for which the mules were sold. At the time of the sale, the sheriff, and the plaio tiffs'in attachment, had notice of the mortgage, and that the mortgagee made claim to the mules. The mortgage was recorded before the rendition of the judgment in the attachment suit. A surplus of $233 remaining in the hands of the sh-riff after satisfying the judgment, the appellees caused an attachment to be issued against the mortgagor, and levied upon it. Thereupon, the appellant, the mortgagee, interposed a claim to it under the statute, and an issue was formed to try the right of property. The rulings of the Circuit Court, though made on objections to the admissibility pf evidence, really involve only the question, whether the money was subject to the attachment; and we consider that question, without dwelling upon tbe manner in which it was presented.

A surplus of money remaining in the bands of a sheriff, derived from a sale of property under legal process, belongs to the owner of the property; and tbe sheriff, and tbe sureties on bis official bond, are bound for its payment to bim. State v. Pool, 5 Ired. 105; State v. Reed, Ib. 351. Tbe lieu of tbe mortgage, though subordinate to that acquired by tbe levy of the first attachment, because of the failure to record it, had precedence of the lien acquired by the levy of tbe attachment in favor of the appellee. Tbe lien of tbe mortgage could not be defeated by tbe excessive sale made by tbe sheriff, and priority given to tbe younger lien claimed by tbe appellee. To prevent such injustice, tbe law, at tbe election of tbe mortgagee, transfers the prior lien to the surplus proceeds of sale, and requires that it should be applied to tbe payment of tbe mortgage debt. — Averill v. Loucks, 6 Barbour, 478. The sheriff may have been guilty of a conversion in selling more of the mules than was necessary to satisfy tbe prior attachment. The mortgagee bad tbe right to waive tbe tort, ratify tbe unauthorized sale, and claim tbe proceeds as money bad and received to bis use. Tbe election was made by a claim to the money, interposed under tbe statute.

Tbe rulings of the Circuit Court were adverse to these views; and its judgment must be reversed, and tbe cause remanded.