Ivey v. Coston & Co. , 134 Ala. 259 ( 1901 )

McCLELLAN, C. J.

The claim of Coston & Co. was not interposed under and in accordance with section 4145 of the Code, and therefore they were not entitled tlo recover as mortgagees, especially as the law day of the mortgage had not lapsed. Nor were they entitled to recover upon the title reserved by them in the sale to defendant in execution, for under that sale the defendant had at least the night to the possession and use of the property until the stipulated time for payment of the price, which time had not expired when the levy was made, nor when the claimi was interposed, nor, even, when the .trial -was had; and this right anid interest of the defendanti in the property was leviable. — Code, § 1890, subdiv. 2.

Hence our conclusion' that the court erred in refusing to give the affirmative charge for the plaintiff, and in giving the affirmative charge for claimant.

Reversed and remanded. •