Wilson & Son v. Curry , 149 Ala. 368 ( 1907 )

TYSON, J. —

The plaintiff predicates his right of recovery in this case upon two certain mortgages, executed by one Harrison Goodson, conveying a mule and the crops raised by Goodson during tbe year 1904. One of tbe mortgages was executed on February 29, 1904, to secure a debt wbicb matured tbe 1st day of November, 1904. Tbe other was executed on the 29th day of October, 1904, and secured a debt that matured on the 5th of November following. Under the mortgages the plaintiff’s right of possession to the property conveyed was postponed until the maturity of the respective debts secured. It appears undisputedly from the testimony that the execution, under which the appellee acquired possession from Goodson of a portion of the property, was levied on the 5th day of October, 1904, and that the attachment writ under which he acquired the possession of the balance of the property from Goodson was levied on the 1st day of November, 1904. If it be conceded that the taking of the property was wrongful, and, therefore, constituted a trespass or conversion, the plaintiff, having no right to its possession at that time, cannot recover under the counts of his complaint in trespass and trover.- — Johnson v. Wilson, 137 Ala. 468, 34 South. 392, 97 Am. St. Rep. 52; Heflin v. Slay, 78 Ala. 180.

But, aside and independent of this consideration, under the testimony upon which the trial was had, no recovery could be had under either of these counts. The property levied on under the execution was in the possession of the mortgagor. He had an equity of redemption in it that was subject to- levy and sale under the execution. — Section 189, Code 1896. The officer, execut-' ing the process of execution, therefore, had the right to the exclusive possession of the property and to remove it from tbe premises of the -debtor.- — Andrews v. Keeth, 34 Ala. 722; 11 Ency. of Law (2d Ed.) p. 658. His act of taking and removal, being lawful, could not be tortious, and ,therefore, could not be made the predicate for a recovery in trespass and trover. For like reason, his act in executing the process of attachment was not wrongful. And clearly, if the officer levying these processes would not be liable in trespass or trover, these defendants would not be.

Aré the defendants liable under the counts of the complaint in case? It is alleged in each of them that the property was converted by defendants to their own use, and on account of this conversion plaintiff has lost his lien. It was shown that all the property that was taken by the officer, not condemned in the attachment proceeding for rent of the land, was released from the levy of the execution, and the defendant in execution notified of it. In other words, no sale was made under the execution. But it may be said that it. was the duty of the officer, upon the release of the levy, to have' restored the property to the defendant in execution. This may be conceded, and yet it is not perceivable how his failure to do so was such a conversion as to destroy the plaintiffs lien, or for that matter, a conversion at all, in the absence of a refusal to deliver to plaintiff upon demand. The possession having been acquired lawfully, in order to' make his detention wrongful there must be a demand. — Boutwell v. Parker, 124 Ala. 341, 27 South. 309. Furthermore, a mere nonfeasance or neglect of legal duty is not a conversion. — Bolling v. Kirby, 90 Ala. 215, 7 South. 914, 24 Am. St. Rep. 789. It was shown that upon- the release of the levy the property was offered to the defendant in .execution from whose possession it was taken, and that he refused to accept it. In its then status there was no greater obstacle in the way of plaintiff enforcing his lien under his mortgage than there would have been had the defendant in execution accepted it, or had the property never been levied on at all. As to the property condemned and sold in the attachment proceeding for the rent of the land upon which the crops were raised, we need only to call attention to the fact that plaintiff’s lien upon this property was subordinate to the one enforced by that proceeding. — Sections 2703, 2706, Code 1896. Nor was the attaching landlord restricted in the enforcement of his lien to any particular portion of the crop. — Givens v. Easley, 17 Ala. 385; Couch v. Davidson, 109 Ala. 313, 19 South. 507; Andrews Mfg. Co. v. Porter, 112 Ala. 381, 20 South. 475. It is entirely clear to us, under the evidence admitted by the court, the case being tried without a jury, that a judgment should have been rendered for defendants.

We have not noticed the rulings of the court'in sustaining demurrers to defendant’s special pleas, since, after eliminating the pleas, all testimony admissible under them was admitted in evidence. Proceeding to render the judgment which the trial court should have rendered, one will be here entered for defendants. — Acts 1894-95, p. 1225.

Reversed and rendered.

Dowdell, Anderson, and McClellan, JJ., concur.