Pilcher v. Hickman , 132 Ala. 574 ( 1902 )

TYSON, J.

— Action of trover, originally commenced against sheriff and purchaser at execution sale. The complaint ivas amended by striking out the purchaser as party defendant and judgment was obtained against the other defendant, Avho prosecutes this appeal.

The evidence shows, without dispute, that the execution was regular on its face and issued out of the circuit court of Henry county; and that it was levied upon the mule found in the possession of the plaintiff’s father, who was the defendant in execution. That the mule bad been in bis possession ever since tbe plaintiff claims to' bave owned it — some ten or twelve monbs. After tbe levy, the defendant in this suit took possession of tbe mule and sold it under tbe execution as tbe property of tbe defendant in the writ. It was admitted by plaintiff that be saw tbe mule being taken under tbe writ from the possession of bis father and was present when it was sold under execution. There was no evidence that the sheriff bad any knowledge of tbe plaintiff’s claim to tbe mule or that plaintiff gave him any notice whatever of bis claim. We bave noted tbe fact of tbe knowledge of tbe plaintiff of tbe levy and sale, not for tbe purpose of working out an estoppel against him in this action against tbe sheriff, but simply to show that be bad tbe opportunity of giving notice that .the mule was bis, and at least presumptively showing that tbe sheriff bad no knowledge of bis claim, but relied upon the father’s possession as evidence of bis ownership. Whether bis conduct would work an estoppel against him as against tbe purchaser we need not and do not decide. Having found tbe mule in tbe possession of the father, the defendant in execution, tbe sheriff bad tbe right, in the absence of knowledge or information to tbe contrary, to presume that be was tbe owner of it, and it was bis duty to levy upon it as tbe property of such defendant (Murfree on Sheriffs, § 968) ; and, of course, it was bis duty to sell it unless be came into tbe posession of a knowledge of facts before tbe sale which if followed up would bavie disclosed that tbe property did not belong to tbe father. Doubtless if after acquiring such information, be then proceeded with tbe sale, he ■ could be ■ made liable in trespass or trover. Nor could this duty, under tbe undisputed facts of this case, bave been shirked by him so as to avoid responsibility to the plaintiff in execution by resort to a demand for bond of indemnity under section 1903 of tbe Code. It is only when a reasonable doubt exists whether tbe personal property levied on belongs to defendant in execution, that such bond can be demanded. Where, as here, tbe defendant in the writ was tbe prima facie owner, in tbe absence of anything to’ rebut tbe presumption, tbe sheriff would have had no right to refuse to make the levy or to release it after made, had the plaintiff refused to have indemnified him upon demand. So then the facts of this case clearly bring it directly within the principle laid down by Mr. Freeman: “If the property is in possession of the defendant in execution, it is prima facie his. The officer may, therefore, levy upon it, if he knows nothing to rebut this presumption, and cannot be charged as guilty of a conversion, unless, after notice that it belongs to another, he insists upon retaining possession of it and refuses to deliver it to the owner.” — 2 Freeman on Executions (3rd ed.) § 254.

The affirmative charge requested by defendant should have bjeen given.

Keversed and remanded.