Seisel & Co. v. Folmar & Sons , 103 Ala. 491 ( 1893 )

BRICKELL, C. J.

It is a controlling principle in the statutory trial of the right of property, levied upon by attachment or execution, that the claimant must recover oil the strength of his own title; not because of the weakness or want of title in the defendant in the process. Nor can he be permitted to support his claim and defeat the levy, to show a title paramount to that of the defendant in the process in a third person, a stranger to the proceeding. If the correctness of these principles need vindication, it will be found in the unanswerable reasoning in the early case of McGrew v. Hart, 1 Port. 175-184, and in the subsequent cases of Dent v. Smith, 15 Ala. 286 — 292, and Foster v. Smith, 16 Ala. 192-194. In Dent v. Smith, it was said by Dargan, J.: “If we were to permit a claimant to interpose the title of a third person to defeat an execution, it would be to permit one man to redress the wrongs to another, and thus to take charge of his rights, in which the claimant has no interest. If this could be done, the title of the third person would be bound by the decision, and hence the right and title of the owner in fact, would be barred by a proceeding to which he was not a party. This view •fully vindicates the propriety of the decision in thé caáe of McQrew v. Ilart, and shows that in the trial of the right of property, the claimant must rely upon his own title, and can not be permitted to insist on the title in another, to which he is a stranger'.’” In Foster v: Smith, it was said by Chilton, J.: “It is perfectly clear that if the claimant has no right to the property, the title to •which he proposes trying by interposing his claim, he can not recover because a third person, a stranger to the proceeding, may be supposed to have a title paramount to that of the defendant in execution. By the interposition of his claim, he arrests the execution of the process upon the property to which he asserts title, and virtually asserts that the sale of it for the satisfaction of the plaintiff’s fi. fa. is inconsistent with his rights. If he has no such rights, it is a matter of no concern to him whether the rights of a third person, between whom- and himself there is no privity, may be invaded.” From these principles there has been no departure; on the contrary they have been re-affirmed whenever the question arose. — 3 Brick. Dig., 776, § 5.

This reference to these well settled principles, is rendered necessary by the insistence of the counsel for the appellants, that the title to the property levied on, or a large part thereof, resided in Rothchilds & Sons, and not in the defendant in attachment, and that he had no interest therein, which was the subject of levy and sale under legal process. Whether this be true or not, is not a matter involved in this controversy. If it be true, the title of the appellants, upon the strength of which only, their claim can be supported is not aided; and unless they were privy to, or connected with the supposed paramount title, they have no right or interest in its assertion or maintenance.

It is insisted that by the arrangement between the defendant in attachment and the claimants, subsequent to the levy and the interposition of the claim, and the arrangement with Rothchilds & Sons, on the day preceding the trial in the court below, the claimants acquired the title of Rothchilds & Sons, and were entitled to assert it as paramount to the right of the appellee. A consideration of the title asserted to exist in Rothchilds & Sons, and whether it was superior or inferior to the lien of the appellee for rent, is not necessary, and would not now be profitable. Nor is it necessary to inquire what rights the appellants acquired by the • arrangement with the defendant in attachment and Rothchilds & Sons. If they acquired the right now claimed, it was acquired subsequent to the commencement of the suit, and' it is unavailing to support the claim they had interposed: ' Tt is merely elementary to say that a title acquired, or facts occurring subsequent to the commencement of a suit, which are essential to a recovery, are unavailing. The claimant in a trial of the right of property, like the plaintiff in an action at law, must fail, unless the facts existed when the claim was interposed, which entitled him to interpose and maintain it. — Donaldson v. Waters, 30 Ala. 175.

The title of appellants, and the only title so far as shown, which existed, or with which they had any connection when the claim was interposed, was derived from the mortgage executed by the defendant in attachment, subsequent to the lease or contract of renting of the store-house. It has not been insisted, that the title of a mortgagee, is entitled to priority over the lien of the landlord, for the rent of a store-house or other building. The statute declares the lien is "superior to all other liens, except those for taxes." — Code, § 3169. The lien attaches as soon as the goods or chattels are brought upon the rented premises, and can not be defeated by any disposition of them, by the tenant, not in the usual course of the particular business, in which he is engaged in and upon the premises. — Abraham v. Nicrosi, 87 Ala. 173; Weil v. McWhorter, 94 Ala. 540. The result is, we find no error in the rulings of the court, to which exceptions were reserved.

Upon the trial of the right of property levied on by attachment, if the issue be found against the claimant, the appropriate judgment is a condemnation of the property ; that it is subject to the levy of the attachment, and is condemned to the satisfaction of the judgment which has been or may be obtained. A judgment that the claimant and his surety or sureties in the claim bond, pay the plaintiff in attachment, the value of the property as assessed by' the jury, is erroneous. The sureties in the claim bond become liable when the claimant fails to deliver the property to the sheriff. The failure renders it the duty of the sheriff to return the bond forfeited , and then execution thereon may issue against the principal and sureties. — Code, § 3013. It was erroneous to render judgment against the appellees and their surety on the claim bond, for the value of the goods levied on, assessed by the jury, and the costs of suit. The error in this respect is a clerical misprision which.was amendable, and would have been amended :on motion, in the court below. — Code, § 2836. Such errors furnish no cause for the reversal of a judgment, but the record furnishing sufficient matter to amend by, will be here amended. — Seamans v. White, 8 Ala. 656; Gray v. Raiborn, 53 Ala. 40. The judgment will be amended by the rendition of the appropriate judgment, and of the judgment as amended, there must be an affirmance.

Affirmed.