Shepherd v. Taylor , 105 Ala. 507 ( 1894 )

HEAD, J.

Action on the case by appellee, Taylor, ' against appellant, Shepherd, for damages for removing from the rented premises a piano on which plaintiff held a lien for rent as landlord of a dwelling house in Birmingham, Ala., rented to one Emma Lamar. The complaint is that defendant with notice of the lien, removed, or caused the piano to be removed, from the rented premises, thereby hindering and delaying plaintiff in the collection of her rent, and that by reason thereof plaintiff suffered loss and delay in the collection of her rent- to her damage $250. There was a demurrer to the complaint but it seems scarcely debatable that, if the facts above stated are true, there was an actionable wrong done to the plaintiff by the defendant. The demurrer was.properly overruled.

The case was tried on the general issue, by the court, without a jury. The proof shows that the tenant, Emma Lamar, owned only a one-half interest in the piano, as a tenant in common with her sister, who owned the other half interest, at the time it was placed upon the rented premises, and thereafter — Mrs. Lamar never acquiring any greater interest. The two sisters lived together on the rented premises. During the tenancy, Mrs. Lamar became indebted to defendant., Shepherd, and with the consent of her sister, executed to him a mortgage on the piano to secure the indebtedness and to secure future advances, and being unable to pay, she, on the demand of Shepherd, delivered to him the piano in June, 1892. He removed it to his residence, in Birmingham, and there kept it. On October, 1st, 1892, Mrs. Lamar being in arrears of rent in about $700, the plaintiff sued out an attachment against her to enforce the statutory lien on her goods, furniture and effects. The sheriff levied on the goods &c. he found on the rented premises, worth about $100, the most of which was released under permanent claims of others. Neither the plaintiff, her agent nor the sheriff then knew where the piano was, and, of course, it was not levied upon. After-wards, however, but how long does not appear, plaintiff’s agent learned where it was and demanded its surrender of Shepherd under the plaintiff’s claim, which demand was.refused. Shepherd himself testifies: “I claimed and took the piano under my mortgage. I told Mr. Elliott [plaintiff’s agent] that it was in my possession and at my house ; I declined to give up the piano, and held it as my own. He also testified that before the suit was brought plaintiff’s attorney proposed to him that they sell the piano and divide the proceeds, or that he pay $75 for plaintiff’s interest. These propositions were declined.” There can be no question that these facts constituted a conversion of the interest of Mrs. Lamar in the piano by her and Shepherd, which was such interference with and. hindrance of the enforcement of the plaintiff’s lien as gave her the remedy pursued in the present case. But the plaintiff is hurt only as to the one-half interest on which her lien rested. She never had a lien on the other one-half for the reason that the tenant never owned it. It is not a question of setting up an outstanding title in a stranger. There is a failure of proof of the allegations of the plaintiff’s complaint, in the matter of ownership, to the extent of one-half interest in the piano. As to one-half interest she has failed to make out her case.

There is plainly no conflict in what we have said with the case of Ehrman v. Oats, 101 Ala. 604.

The city court erred in rendering judgment for the full value of the property, but as the record furnishes a data for the proper judgment we will render it here. The piano is shown to have been worth $300. One half of that sum with interest from October 1st, 1892, amounts to $178. A judgment will be here rendered as of this date for that sum ; and so corrected, the judgment of the city court will be affirmed.

Corrected and affirmed.