Clark v. Johnson & Lattimer , 7 Ala. App. 507 ( 1913 )

THOMAS, J.

This was an action on the case by ap-pellees, Johnson & Latimer, against appellants, J. K. Clark and W. H. Holloway, for the destruction of a judgment lien on one horse, the property of J. D. Holloway, against whom plaintiffs alleged in the complaint they had previously obtained a judgment in the circuit court of Geneva county and duly recorded a certificate thereof in said county. On the trial, after the conclusion of the evidence introduced by the respective parties, the court at the request of the defendants in writing, granted them the general affirmative charge, whereupon there was verdict and judgment accordingly. Later during the term the plaintiff made a motion ■for a new trial, upon the sole ground that the court had erred on the trial in giving the general affirmative charge for defendants. This motion was granted, and formal order and judgment to that end were duly entered. The defendants prosecute this appeal from that judgment, and in the record submitted is a bill of exceptions purporting to contain all the evidence in the case. Our consideration is therefore narrowed to a single inquiry, involving several points, however, to wit: Did the lower court err in giving the general affirmative charge for the defendants? If it did, the new trial was properly granted; and if it did not, it was not.

The judgment upon which plaintiff predicated his allegation in the complaint of a lien upon the horse mentioned, and which lien Avas alleged to have been destroyed by the defendants, was a judgment of plaintiffs against “William Holloway and J. D. Holloway, former partners doing business under the name and style of the Holloway Mill Company.” This, under the authorities, while a judgment against the Holloway Mill Company, is yet also a judgment against the partners individually, and well supports the allegation in the complaint of a judgment against said J. D. Holloway. —Baldridge v. Eason, 99 Ala. 516, 13 South. 74; Dollins v. Adams & Pollock, 89 Ala. 351, 7 South. 904; Leinkauff v. Strauss & Munter, 76 Ala. 196; Blackmon v. Moore & Handley Hdw. Co., 106 Ala. 460, 17 South. 629; Code, § 2506. It is the same (made so by section 2506 of the Code) as if he had been sued alone on an unsatisfied judgment previously obtained against the partnership only. — Cox v. Harris, 48 Ala. 538. Under it his individual property is subject to execution issued thereon Avithout first resorting to and exhausting the partnership property. — Peace v. Shorter, 50 Ala. 318; Hollins v. Adams, supra; Leinkauff v. Strauss, supra; Baldridge v. Eason, supra.

The lien of a recorded certificate of such a judgment covered all the individual property of said J. D. Holloway, subject to levy and sale under execution issued on said judgment, in Geneva county, where it Avas recorded, and hence covered the horse mentioned. — Code, § 4157.

While it is a general rule, as contended by appellants, that the assets of an insolvent partner are to be first applied to the payment of his individual debts, and that partnership creditors can only share.In .the. surplus of such assets beyond what- is necessary to .satisfy the individual creditors, yet this is a rule ;.of equity, and not of law: — the equity of, marshaling assets — applied .in the chancery court upon dissolution and settlement of insolvent partnerships, and .in the probate court upon settlement of insolvent estates of- decedents, when deceased had been a member of a partnership in his lifetime and left both individual and partnership obligations unsatisfied. — Claflin & Co. v. Behr, 89 Ala. 503, 8 South. 45; Van Wagner v. Chapman, 29 Ala. 172; Smith v. Mallory, 24 Ala. 628; Bridges v. McCullough, 27 Ala. 661; Evans v. Winston, 74 Ala. 349.

It Avas not, therefore, incumbent, contrary to the insistence of appellants, upon plaintiff in this action, who is a partnership creditor, to show, before he could subject to the payment of his debt the assets of one of the individuals of that partnership, that that individual owed no separate debts, or that there would be a surplus of such assets after paying such separate debts. This would be requiring of the plaintiff, as a condition to the assertion and maintenance of a legal right, the duty of negativing the existence of facts which would support equitable rights in others, in proceedings in another court that may never be commenced, and which plaintiff was certainly under no duty to commence for them. — Couch v. Davidson, 109 Ala. 320, 19 South. 507. Besides, if it were necessary for plaintiff to negative the right of the individual creditors of J. I). Holloway to “marshal” the property of his (one horse) here involved, it was sufficiently done by the introduction in evidence of plaintiff’s said judgment against him, and the recorded certificate thereof. By it plaintiff obtained a legal lien on the property for the satisfaction of his debt, paramount and superior to any equity the individual or separate creditors of said J. D. Holloway might have had to marshal said property so as to pay out of it.their debts before any partnership debt he might owe. — Meech v. Allen, 17 N. Y. 300, 72 Am. Dec. 465.

If such marshaling proceedings had been actually commenced before the plaintiff acquired his lien upon the property, and were pending at the time of this trial, under such circumstances that the defendants here sued would still be liable to an administrator or receiver, appointed in such proceedings by the appropriate court, for the same assets of the judgment debtor here sought to be reached by the plaintiff, then the defendant could probably set this up in defense of the present action in order to avoid double liability for the same tort in converting such assets. — Kelly v. McCaw, 29 Ala. 227. But even then the burden of proving such facts would not be on plaintiff. Hence there is certainly no merit in appellant’s contention that in order to maintain this suit it was necessary for plaintiff to show, either that J. D. Holloway owed no individual debts, or that the amount of them was less than the total value of all his property.

The gravamen of an action of this character is the destruction of a lien on property so that it cannot be enforced against the property by the lienholder, which destruction may arise, Ave conceive, in various ways: either from the destruction or consumption of the property itself; or by a removal of it front the State (Hussey v. Peebles, 53 Ala. 434) ; or by a hiding or concealing of it within the state; or by a removal of it to other parts of the same county, city, or state so that the lienholder does not know where it is, though it is neither hidden nor concealed (Shepherd v. Taylor, 105 Ala. 508, 17 South. 88; Baker v. Allen, 161 Ala. 288, 49 $outh. 847) ; or a mere sale of it to some person without notice, actual or constructive, of the lien and under such circumstances as that such person would be protected as a bona fide purchaser against such lien; or any other act of interference with the property to such an extent that the lien upon it is lost, destroyed, or impaired, and cannot be enforced (Hussey v. Peebles, 53 Ala. 434; Baker v. Allen, 161 Ala. 288, 49 South. 847; Ehrman v. Oats, 101 Ala. 606, 14 South. 361; McCarty v. Roswald & Co., 105 Ala. 511, 17 South. 120; Scarbrough v. Rowan, 125 Ala. 511, 27 South. 919; Couch v. Davidson, 109 Ala. 320, 19 South. 507; Shepherd v. Taylor, 105 Ala. 508, 17 South. 88; 13 Ency. Pl. & Pr. 168, 171). And any wrongdoer in the chain of acts by which the lien is destroyed, whether his act results directly or indirectly in the destruction, is responsible — Chattahoochee & Gulf Ry. Co. v. Behrman, 136 Ala. 511, 35 South. 132. But the final result must be a destruction or impairment in order to fix a liability on either the initial, mediate, or immediate wrongdoer; for without a destruction or impairment of the lien there is no injury to plaintiff’s rights, and consequently no cause of action.

Mere proof of facts sufficient to show only a conversion, if the action were one of trover by the owner, with.out more, Avill not sustain this action; for the interest of the plaintiff in the property is only a lien, which is neither a jus in re nor a jus ad rem, and, unlike the legal title, carries with it neither the possession nor the right to possession, but only a right to have the property levied on and sold under execution for the satisfaction of his judgment. No intermeddling with the property, therefore, is or can be injurious to the plaintiff’s rights, which stops short of a destruction or impairment of his lien; for until then there is nothing in the way of its enforcement, which is the plaintiff’s only right. The case is essentially different from that of a suit in trover by the owner. In such a case proof only of a mere conversion of the property is, of course, sufficient; for mere conversion in such case results in injury to the plaintiff, interfering, as it does, with his rights to the possession, dominion, and control of the property, the incidents of ownership. Wé are well aware that in some of the decisions of our Supreme Court, and in one of this court (Teat v. Chapman, 1 Ala. App. 491, 56 South. 267), there are intimations that proof of a mere conversion is sufficient to support an action of case for the destruction of a lien, but the best-considered and leading cases of our Supreme Court on this subject are to the contrary. These, hereinabove last cited, we will follow.

The plaintiff, hoAvever, in the present action, made out a prima facie case in the particular discussed, in accordance with the views we have above expressed, when he proved that the defendants had not only sold and converted the property, but that plaintiff did not know, and had no idea, where it was. His lien could not therefore be enforced against it for want of a knowledge of its whereabouts, resulting inferentially from the wrongful act of the defendants in intermeddling or interfering with it by the sale and conversion. In the face of this showing it was incumbent upon defendants to negative the inference that the wrong they did in selling the horse resulted in a destruction of plaintiff’s lien.— Rogers v. Brooks, 105 Ala. 552, 17 South. 97; L. & N. R. R. Co. v. Kill, 115 Ala. 334, 22 South. 163. This they did not do. Of course, the mere sale by them to Donaldson did not destroy the lien; for he bought and held the property in the county where the lien was recorded —therefore had constructive notice of it — and it was enforceable against the property while in his possession the same as in the possession of defendants, provided plaintiffs knew of its whereabouts; it being without conflict that they did. The lien, however, was destroyed by Donaldson, defendants’ vendee, when he sold it to persons outside of Geneva, who removed it so thak plaintiffs did not know where it was. Defendants, being wrongdoers in the first instance, cannot escape liability for Donaldson’s wrongful act, when but for theirs in selling him the property the lien would not have been destroyed. The general rule is that all parties participating in a wrongful act, whether directly or indirectly, are liable in damages for thé wrong done, where injury results. — -Chattahoochee & Gulf Ry. Co. v. Behrman, 136 Ala. 511, 35 South. 132; Powell v. Thompson, 80 Ala. 51; Ensley Co. v. Lewis, 121 Ala. 94, 25 South. 729.

The last question is one of estoppel. The undisputed evidence shows that after defendants sold the horse to Donaldson, and while he was still in Donaldson’s possession, and before the latter had resold him, the plaintiff, Johnson, Avas apprised in some way of the fact, and went to see Donaldson about it, and told him there might be some trouble about the horse. Thereupon Donaldson immediately sees the defendant Clark and, after a conversation with him, returns promptly to see the plaintiff, Johnson, relative to the matter. Johnson and Donaldson differ as to Avhat was then said between them. Donaldson testifies that he told Johnson that: “If there is to be any trouble uoav or hereafter about that horse, you send to my barn and get him.” That Johnson replied, “I will see you directly,” whereupon he (Johnson) went upstairs over the store, and after a conversation with some one up there returned in a few moments and said to Donaldson, “Go ahead and trade the horse Avhen you Avant to.” That understanding the matter settled be (Donaldson) after that traded tbe horse to some one outside of .Geneva, and did not then know where he was. Johnson testifies, on the other hand, that Donaldson said to him (Johnson) : “If you want to claim this horse, I want to know it. I want to '"^settle any claim for him now.” That in reply to this he (Johnson) said, “That will probably crop out later.”

If Donaldson’s version be correct, there was a clear, express, voluntary abandonment by plaintiff, Johnson, of the lien before ever it was destroyed; and plaintiff ■would be estopped now, after it was destroyed by his consent and by his invitation, from relying on it to the prejudice of either Donaldson or the defendants.” “Consensus facit legem.” — Insurance Co. v. McGookey, 33 Ohio St. 565. On the other hand, if the version of Johnson be correct, he did not waive or abandon his lien by what he said. — 23 Cyc. 1403; Beardsley v. Foot, 14 Ohio St. 414, 84 Am. Dec. 407, and cases cited. And his mere failure to enforce, or attempt to enforce, his lien would, not amount to a waiver or abandonment thereof. Mere inactivity in this particular, howsoever long continued, if short of the statutory bar would not deprive him of his lien, in the absence of some act creating an estoppel, waiver, or abandonment. If Johnson is to be believed, there was no such act. As to which was correct — the version of Donaldson or of Johnson-— was a question for the jury to determine from all the evidence; hence the lower court erred in giving.the general - affirmative charge for the defendants, Avhich error it corrected by granting plaintiff’s motion for a new trial, from which latter judgment only this appeal is taken. That judgment granting the new trial is affirmed.

Affirmed.