Pruitt v. Gunn , 151 Ala. 651 ( 1907 )

ANDERSON, J.

A defendant, when sued in detinue or trover, may show an outstanding superior title, with which he connects his claim or possession; or when a plaintiff fails to show former possession, and relies solely upon title, the defendant is allowed to show a superior title in a third person, without connecting himself with it, to defeat the action. But this exception does not apply when both claim title through a common source. — Mitchell v. Thomas, 114 Ala. 461, 21 South. 991; Draper v. Walker, 98 Ala. 310, 18 South. 595; Gardner v. Boothe, 31 Ala. 186. The plaintiff introduced evidence in support of his title, as well as his possession of the horse at the. time it was seized by the defendant. The execution offered ivas properly excluded by the trial court, as Biddle acquired no lien under the levy of same. The levy was more than 60 days after the issuance thereof, and was, therefore, void. — Section 1932 of the Code of 1896; Waldrop v. Friedman, 90 Ala. 157, 7 South. 510, 24 Am. St. Rep. 775.

The defendant, however, attempted to show a judgment lien in favor of Biddle against J. W. Gunn, the father of the plaintiff, and from whose lot the horse was taken, also that the horse really belonged to the father, and not the plaintiff, and was, therefore, subject to the judgment lien. The defendant Pruitt also attempted to connect himself with Biddle’s title by a second execution, which was not void. We think a sufficient predicate was laid for the proof of this second execution by parol, and, if there was a valid execution levied by Pruitt on the horse, then he should have been permitted to prove that the horse belonged to J. W. Gunn, and was subject to the judgment and execution of Biddle.

How much or little the defendant used the horse, was not relevant to the issues, and did not affect the value for the use or hire during the detention. The inquiry was the detriment to the plaintiff due to the detention of the horse, and not the benefit derived by the defendant-.

Biddle was not a party to the suit in the circuit, court, as a judgment was rendered in his favor in the justice court, and for his part of the cost; and neither he nor the defendant Pruitt can complain because the cost subsequently accruing was taxed against the only defendant in the circuit court.

For the error above designated, the judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

Tyson, C. J., and Dowdell and McClellan, JJ., concur.