
    Eldridge v. Grice.
    
      Statutory Trial of the Right of Property.
    
    [Decided June 28, 1902.]
    . 1. Claim, suit; when claimant estopped to deny proper levy. — When in making out an affidavit preparatory to interposing a claim to property levied upon, the claimant avers In said affidavit that the property was duly levied upon, he thereby estops himself to subsequently deny a proper levy.
    2. Same; what necessary to authorize claimant’s recovery. — In the trial of the right of property, a claimant must recover on the strength of his own title; and he is not entitled to recover when he shows no title in himself, but a title paramount to that of defendant in execution or of the plaintiff m a third person who is a stranger to the proceedings.
    Appeal from the Circuit Court of Henry.
    Tried before the Hon. John P. Hubbard.
    The appellee, John Grice, recovered a judgment against W. T. Eldridge and C. B. Searcy. On this ■judgment execution was issued and levied upon a bale of cotton. Thereupon the claimant, Mary W. Eld-ridge, the wife of the defendant in execution, interposed a claim to said cotton so levied upon; and upon the interposition of this claim, trial was had upon issue joined to determine the right to the property so levied upon. The facts of- the case are sufficiently stated in the opinion.
    Upon the introduction of all the evidence, the court at the request of the plaintiff gave the general affirmative charge in his behalf. The claimant excepted to the giving of this charge, and also excepted to the court’s refusal to give the general affirmative charge requested by her.
    There were verdict and judgment for the plaintiff. Claimant appeals, and assigns as error the rulings of the court upon the charges ashed.
    P. A. McDaniel, for appellant,
    cited Jaclcson v. Bain, 74 Ala. 328; Sehmagel v. Whitehurst, 103 Ala. 260; tí mart Jiros, v. Hodges, 105 Ala, 634; S. & W. li-li. Co. v. Jarvis, 95 Ala, 149; Bromley v. Bir. Min. li. li. Co.. 95 Ala. 397.
    W. O. Lang, contra,
    
    cited Sehmagel v. Whitehurst, 103 Alá, 263; Seisel & Co. v. Colmar & Son, 103 Ala. 491; Boswell v. Carlisle, 55 Ala. 565; Johnson r. State. 100 Ala, 57; Bienville IT. S. Co. v. Mobile, 125 Ala. 178; Seymour r. Carguhar, 93 Ala. 292.
   HARALSON, J.

— This was a suit for the trial of the right of property under the statute.

That the property had been duly levied on is shown by the affidavit for claimant and her claim bond, which estop her to deny a proper levy.—Schamagel v. Whitehurst, 103 Ala. 260.

The plaintiff introduced the constable, who testified that on 15th September, 1900, .lie levied an execution from a. justice’s court in the county of Henry issued, on a judgment therein, in favor of the plaintiff, against the defendant, N. T. Eldridge, and one O. B. Searcy, on the hale of cotton involved in this suit; that at the time of the levy, said cotton was stored in a warehouse in Abbeville, in the name of defendant, Eldridge, to whom a wa,rehouse receipt had issued for the same. Other evidence tended to show that he was in possession of the property.

It is well settled, that in a statutory trial of the right of property, the burden of proof is on the plaintiff, in the first instance, to make out a prima facie case that the property levied on is the property of defendant in execution, which burden is discharged when he shows that the defendant was in possession of the property, at the time of the levy, such possession being presumptive evidence of title. The burden then shifts to claimant to overcome this prima facie presumption; of ownership in defendant, and to prove ownership in himself. Jones v. Franklin, 81 Ala. 161; Jackson v. Bain, 71 Ala. 328; Vaught v. Oehmig, 95 Ala. 306.

Another controlling principle is, that the claimant must recover on the strength of his oavu title, and not on the want or weakness of title in the defendant in execution,-nor can he show, to support his claim, a title paramount to that of defendant in a third person a stranger to the proceeding. Formerly the claimant, as was held, “must show a legal title in himself, such as will support an action of detinue for the property, or else fail in his claim suit—the possession of defendant, to whose right the plaintiff succeeds, being superior to a want of both title and possession in himself.” Jones v. Franklin, supra; Leisel v. Folmar, 103 Ala. 494.

It may be well to add, that under the present statute (Code, £ 4141), that any one not a party to the suit, who claims to own an equitable, or a paramount lien etc., may institute a claim suit to try his right to it at law, as though he had the legal title.

The proof on the part of the claimant tended to show, that the cotton was raised by her. One Murphy testified for ber, that be rented a farm and advanced •to ber money and supplies with wbicb to make a crop on tbe rented land in 1900, and sbe made a crop ; that tbe bale of cotton claimed in tbis case was raised by claimant and was a part of tbe crop raised by ber in 1900 on said rented premises, and that tbe cotton in question was claimant’s; that in tbe early part of tbe season, be went to claimant’s bouse and bought nine bales of ber cotton, at a price then agreed upon between ber and himself, said cotton to be delivered to bim along as claimant got it ready for market, tbe proceeds when delivered to be placed to claimant’s credit for supplies furnished that year; that some days later, be instructed claimant, that as sbe got the nine bales of cotton ready for delivery, to carry it-to Abbeville and to either sell it and place tbe proceeds in tbe bank to witness’ credit, or, if the market was not satisfactory, to place tbe cotton in tbe warehouse anid send witness tbe warehouse receipt for tbe same; “that to tbe time of tbis bale, claimant bad delivered to witness two of said nine bales of cotton, and tbis was tbe third bale; * * * that the husband of claimant (said N. T. Eldridge), brought tbis bale of cotton to bis bouse to bim, as one of tbe (nine) bales be bad bought (from claimant), and be, witness, told the husband to carry it to Abbeville and store it ini a warehouse for bim, or sell it and deposit tbe proceeds to his, witness’ credit in bank.”

Tbe defendant in execution, N. T. Eldridge, testified, “that claimant, ivho is bis wife, told bim on bis leaving home with tbe bale of cotton, to carry and deliver it to Mr. Murphy, as one of tbe bales be had bought from ber, be having bought nine bales, and to do- what Mr. Murphy told him to do with it, and that he carried and delivered it to Murphy, and be told him to' carry it and store it in tbe warehouse for him, or to sell it and deposit tbe proceeds in bank to his credit.”

If these two witnesses, examined by tbe claimant, are to be believed, and there is no evidence in conflict with theirs, tbis cotton was raised by and belonged to the claimant, and was afterwards sold and delivered by her to said Murphy, who, after its delivery to him, intrusted it to claimant’s husband, the defendant in execution, to canr-y it to Abbeville and warehouse it for him. and in his name, or sell it for him and place, the proceeds to his, Murphy’s credit in bank. According to this evidence, Murphy became; the owner of the cotton, the title having vested in him by reason of his purchase of the same from claimant and her delivery of it to him.

The claimant, thereafter, had no title to the cotton,, and, therefore, mo right to maintain this claim suit by proving title in Murphy. If defendant in execution abused Murphy’s trust, as the evidence tends to show he did, that did not affect, the status of the case, as between plaintiff and defendant, who ivas in possession of the property at the time of the levy of the execution.

Affirmed.  