Cade v. Floyd , 120 Ala. 484 ( 1898 )

HARALSON, J.

1. Section 1484 of the Code of 1896, .embodying the provisions of the act of February 26, 1889 (Acts of 1888-89, p. 57), provides that “when a suit is brought for the recovery of .personal property in specie under the provisions of section 1474 .(2717), and the defendant shall neglect for five days to give bond as therein provided, if the property seized is claimed by A person not a party to the suit, and affidavit and bond is executed as required by law in cases of trial of the right of property when levied on by the writ of fieri facias, the property must be delivered to the claimant, and the .affidavit and bond returned by the officer having in charge the property claimed, with the summons, and thereupon the same proceedings must be had as in other trials of the right of property.”

The affidavit required by this section to be made by a claimant, as the basis for interposing his claim, although made within five days after the seizure of the property, was not on that account void as an initial step in the proceeding for the claim suit. If the claimant, having made such affidavit within five days after the seizure, had, at the expiration of five days thereafter, executed the claim bond and received the possession thereunder, of the property lévied on — the defendant having neglected in that time to replevy the property — it could not be seriously questioned that the claim would have been properly interposed. We need not decide, whether the claim bond having been executed by claimant, before the expiration of five days after the levy and seizure, was so irregular as to render it of no effect for the purposes for which it was made. However that may be, the bond and the affidavit of claim were stricken from the file on motion of the plaintiff, and at the term of the court at which the claim suit was properly triable ; and, thereupon, by leave of the court, the claimant filed another affidavit and executed another claim bond. This latter affidavit and bond, the plaintiff moved, also, to strike from the file, 'on -grounds- substantially, that they were made after the expiration of the five days referred to in the statute ; that claimant had been in possession of the property since the execution of the original claim bond ; that the sheriff was not in possession of the property,. and that the former affidavit and claim bond had been stricken from the file. This additional affidavit and bond were made, as we have stated, and were allowed to be filed before the parties entered on the trial of the claim suit, and while the proceedings were in fieri. In Martin v. Mayor Bros., 112 Ala. 620, a case of the statutory trial of the right of property, a third party filed an affidavit and executed a replevy instead of a claim bond. The bond was allowed to be amended so as to make it a claim bond. The court said:, “When the attachment was levied, the claimants made affidavit and executed a replevy bond instead of a claim bond, and it was indorsed as such by the sheriff. Before entering on the trial by leave of the court, the bond was amended so as to make it a claim bond. The amendment was allowed against the objection of the plaintiff. The court did not err in this ruling. * * * In the case at bar, the affidavit and claim and sheriff’s return all show that a claim bond was intended, and the error consisted in not properly framing the conditions af the bond. The whole proceedings were in fieri, and the amendment made merely corrected the mistake.”

As to the objection that the claimant and not the sheriff was in possession of the property when the last claim bond was executed and approved by him, it seems to be fully met by the decision of this court. in a case similar in many respects to the one last cited. In the case referred to the claimants executed a replevy bond and received the property, and on a subsequent day, they sought to withdraw and destroy the repley bond, which request was refused by the .sheriff. Thereupon, without a redelivery of the property to the sheriff, they executed a claim bond which was approved and accepted by the sheriff, who returned both bonds to the court. At-the return term, the plaintiff's in the claim suit moved the court to strike the claim affidavit and bond from the file, on the ground that they .were improperly received, after the goods had been replevied, obtained axid held by the claimants themselves, under the replevy bond. The court held that there was no error in overruling the motion to strike the claim proceedings from the file, stating, in language applicable and appropriate to the casein hand, “True, there was ho formal surrender of possession of the goods to the sheriff, but the sheriff is not shown to have made any point on that. He accepted the affidavit of claim, and approved the claim bond offered. This estopped the claimants from denying that they acquired the possession and held 'it under the claim bond. If the sheriff, had been placed in possession of the property, he would have retained it only long enough to- approve the bond, when it would have passed instantly back to the claimants. If the possession acquired under the replevy bond had been tendered to the sheriff, and simultaneously a sufficient affidavit of claim and a sufficient claim bond had been tendered to him, he would have (had) no authority to refuse either. Had he done so, on proper application a mandamus would have been awarded, compelling him to accept the redelivery of the goods, to receive the affidavit of claim, and to consider the sufficiency of the sureties offered.on the claim bond; and if found sufficient, he would have been compelled to approve the claim bond, thus annulling the replevy bond, and inaugurating proceedings for the trial of the right of property,” etc. Roswald v. Hobbie & Teague, 85 Ala. 73.

Under the circumstances shown, in the case in hand, there was no error in the action of the court allowing the additional or amended affidavit and claim bond. The claimant is estopped from denying that he acquired possession and held under this bond, and it subserves the plaintiff’s purposes as well as if it had been executed on the day he. would have preferred for it to have been executed.

2. The $200 note by Alex. Hamilton to plaintiff, dated August 1, 1895, and payable on the 1st of November, 1896, under the undisputed facts in the case, was a part of the consideration for the written settlement and discharge of plaintiff’s mortgage, given.by the plaintiff in July, 1895. The words at the conclusion of said writing, “And a note for $200 payable on the 1st Novr., 1896,” even without the aid of extrinsic proof, would appear to have been added as a part consideration for the settlement and discharge of said mortgage, as evidenced by the writing; but the fact becomes palpable under the uncontroverted evidence. Their proper place in the instrument, is immediately after the words “three hundred dollars,” so as to make it read r “Received of Alex. Hamilton, per Dr. J. T. Floyd, the sum of ($300) three hundred dollars and a note for $200, payable on the 1st Nov., 1896, in full settlement of all notes, mortgages and accounts and demands I claim or hold against Alex. Hamilton,” etc., including, by its further terms, the detinue suit we now have before us. This instrument discharged that mortgage, and rendered it functus as a security for every obligation included or intended to be included in it. The mortgagor and mortgagee were without power to restox’e it as a mortgage security for axxy debt the mortgagor might thereafter contract with the mortgagee. So, when the mortgagor afterwards gave the plaintiff, — the mortgagee in that former mortgage, — his $200 note, if was without his capacity, verbally or in writing, to impart life to said mortgage, already dead for any purpose as a security, and make it stand as a resurrected security for said note. The words, .therefore, at the conclusioix of said note, — “This note is secured by mortgage on stock and described in xnortgage now on record in Union Springs, Ala.,”- — were without any effect, as applied to said xnortgage, to make it a security for the note, especially against the claimant, who .knew nothing of the terms of said ixote in this respect, and who had previously paid off and satisfied said mortgage, taking plaintiff’s written release axxd discharge of the same.

3. There was no error in not allowing what was offered to be proved by plaintiff by the witnesses, Pace and Banks, as to what Alex. Hamilton said to them about the $200 note he had given to plaintiff. Hamilton’s interpretation of the transaction, given in the absence of claimant, to which he did not assent, could not conclude claimant’s rights under his mortgage. Moreover', that Hamilton owed the $200 note to plaintiff was an admitted fact by claimant, and the proof of' it by these witnesses had no tendeixcy to show that it was secured by said former mortgage to plaintiff. Nor did the fact that Hamilton admitted to these witnesses that this note was secured by plaintiff’s mortgage ixxtrodixced in evidence by him, make said mortgage a security for said note, since, as we have seen, the note was given as a part consideration for the full payment and satisfaction of said mortgage, which remained no longer a security for anything.

The court did not err in giving the general charge for claimant.

'■-Affirmed.