Opinion
6 Div. 710.
June 29, 1920.
Appeal from Circuit Court, Blount County; O.A. Steele, Judge.
Action by the Boaz Fertilizer Company against A.J. Cornelius, in which plaintiff had execution levied upon property claimed by A.S. Bains. Judgment for claimant, and plaintiff appeals. Affirmed.
James Kay, of Oneonta, for appellant.
The plaintiff's lien was superior to all subsequent conveyances. Acts 1898-99, p. 1809; 117 Ala. 571, 23 So. 523; 170 Ala. 232, 54 So. 532; 179 Ala. 573, 60 So. 874. Plaintiff was a bona fide creditor, and must be protected as such. Section 3394 et seq., Code 1907, as amended by Acts 1911, p. 115; 84 Ala. 316, 4 So. 31; 166 Ala. 99, 51 So. 994; 169 Ala. 154, 53 So. 1014, 33 L.R.A. (N.S.) 374; 169 Ala. 506, 53 So. 1028.
J.F. Kelton Son, of Oneonta, for appellee.
No brief reached the Reporter.
The appellant obtained judgment on May 15, 1916, against A.J. Cornelius, and on May 26, 1916, under proper certificate, recorded the judgment in the office of the judge of probate. Execution thereon issued July 7, 1919, and was levied upon two horses as property of Cornelius, defendant.
A.S. Bains laid claim to the property, and made the requisite affidavit and claim bond. After litigating the matter in the justice of the peace court, where judgment was obtained, the cause reached the circuit court on appeal, where judgment was rendered for claimant.
Claimant bases his right to the property by virtue of a mortgage executed by A.J. Cornelius to one J.K. Tidwell, of date October 31, 1918, due and payable November 1, 1919, properly recorded as of November 16, 1918, and transferred to A.S. Bains by Tidwell on November 15, 1918.
From the evidence it appeared that the horses were Tidwell's, and were sold by him to Cornelius, either contemporaneously with the execution of the mortgage, or under an agreement to execute the mortgage, which was consummated within a short time thereafter.
Sitting without a jury the court gave judgment for the claimant. An examination of the record discloses the fact that there is ample evidence to support the finding of the court, and under the familiar rules, we are unwilling to disturb this finding.
Affirmed.