Opinion
8 Div. 840.
October 29, 1929.
Appeal from Law and Equity Court, Franklin County; B. H. Sargent, Judge.
Action by the Valley Securities Company against the Gober Motor Company and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded.
The complaint is as follows:
"(1) The plaintiff claims of the defendant, and each of them, severally and separately, $400, as the reasonable value of one Chevrolet motortruck, 1926 model, motor No. 2,435,607, which defendants on, to wit, the 8th of January, 1927, converted to their use and benefit, and on which this plaintiff had and held at the time a title retaining contract, and therefore the legal title.
"(2) The plaintiff claims of the defendants, and each of them, severally and separately, $400, for that on, to wit, January 8, 1927, the plaintiff had and held a lien, by virtue of a written contract, on one Chevrolet motortruck, 1926 model, motor No. 2,435,607. It is alleged the defendants sold the same under an alleged mechanic's lien, or else procured the same to be sold under an alleged mechanic's lien, whereby the plaintiff's previous lien was nullified and destroyed; all to the plaintiff's damage in the sum of money aforesaid."
Grounds of the demurrer are:
"(1) The same states no cause of action.
"(2) It is not alleged that the defendants jointly converted said motortruck.
"(3) It is not alleged that said title retaining contract was on record before the time it is alleged the motortruck was converted.
"(4) It is (not) alleged that the defendants or either of them knew of said title retaining contract at the time or before it is alleged the same was converted.
"(5) It is not alleged that the defendants were not innocent purchasers of said motortruck.
"(6) The allegation that the plaintiff held a lien on the motortruck is a conclusion of the pleader.
"(7) It is not alleged wherein or how the plaintiff claimed a lien on the truck.
"(8) No facts are set up which show that the plaintiff has a lien on the truck.
"(9) It is not alleged that defendants did not have a prior lien or claim on said motortruck.
"(10) It is not alleged that defendants were not judgment creditors of the person in possession of said truck at the time it is alleged the same was converted.
"(11) It is not alleged that the defendant's lien was not superior to the plaintiff's right in and to said truck.
Williams Chenault, of Russellville, for appellants.
The statute provides that conditional sales contracts shall be recorded in the county where the property is kept in order to protect it against creditors, and, when the property is brought into the state, it must be recorded within three months from the time it is brought in. Code 1623, § 6898; McNeill v. Motor Sales Co., 208 Ala. 310, 94 So. 365.
J. Foy Guin, of Russellville, for appellee.
Gober, having failed to retain possession of the truck, has no common-law lien, but is remitted to his rights, if any, under section 8863, of the Code. Neither defendant can set up that Taylor had any power to contract in such manner as to fix a lien on the truck as against the rights of plaintiff. There is no evidence that plaintiff expressly or impliedly consented to the making of the repairs by either repairman. Neither of the defendants can avail of the provisions of section 6898 of the Code, being neither purchasers, for valuable consideration, mortgagees, landlords with a lien, or judgment creditors without notice. See Tallassee Motor Co. v. Gilliland, 22 Ala. App. 21, 112 So. 758; Id., 216 Ala. 257, 112 So. 759; Alexander v. Mobile Auto Co., 200 Ala. 586, 76 So. 944; Walden Auto Co. v. Mixon, 196 Ala. 346, 71 So. 694; Campbell Motor Co. v. Stanfield, 214 Ala. 506, 108 So. 515.
The plaintiff in two counts claims damages of the defendants in the sum of $400 for the conversion by them of a certain automobile truck. Each count states a cause of action, and is not subject to any ground of demurrer interposed.
One Taylor contracted to buy the truck described in the complaint from Leonard Hume Chevrolet Company. He made a cash payment, and executed a contract to secure the deferred payments, in which contract the title to the truck was retained in the seller until all deferred payments were made. This sale was made in Mississippi in May, 1926, and the paper was duly and promptly recorded in that state, and then sold and transferred to this plaintiff. Taylor moved and brought the truck to Franklin county the latter part of August, 1926, and the Gober Motor Company, one of defendants, did some repairs on the truck in September and on November 3d, for which they have claimed a lien. The Smith Chevrolet Company did some repairs and furnished some material for the truck in December, 1926, after they were informed of plaintiff's lien.
As for the claim of defendant Gober Motor Company: Such repairs as were made by them on the truck were within three months after the truck was brought into this state. The Gober Company did not retain possession of the truck, but, after repairing same, delivered it to Taylor. By this act the Gober Company lost its common-law lien, and is remitted to its rights under the statute, Code 1923, § 8863, made and provided for such cases. Tallassee Motor Co. v. Gilliland, 22 Ala. App. 21, 112 So. 758. To enforce this lien the Gober Motor Company proceeded regularly under section 8864 of the Code of 1923 by attachment in a court of competent jurisdiction, and in due time and in regular course obtained judgment and condemnation of the property. Under order of court the property was sold and bought in by J. B. Gober for Gober Motor Company. In the absence of the claim of plaintiff, this purchase places the clear title to the truck in Gober, without regard to the judgment rendered against Taylor and in favor of Smith Chevrolet Company. Ames Co. v. Slocomb Mercantile Co., 166 Ala. 99, 51 So. 994.
Gober being a purchaser at an execution sale against the buyer, Taylor is within the protection of section 6898 of the Code of 1923. Ames Co. v. Slocomb Mercantile Co., 166 Ala. 99, 51 So. 994.
The conditional sale contract was not recorded in Franklin county, Ala., within three months after the property had been removed to this state from Mississippi, nor has it ever been so recorded, nor was there sufficient evidence to warrant the court in finding that Gober Motor Company had actual notice of the conditional contract prior to the execution sale at which it became the purchaser. That being the case, Gober got title to the truck at the sale as against the plaintiff in this case. Ames Co. v. Slocomb, etc., supra; Pulaski Mule Co. v. Haley Koonce, 187 Ala. 533, 65 So. 783, Ann. Cas. 1916A, 877; Brandon Printing Co. v. Bostick, 126 Ala. 247, 28 So. 705; In re Dancy Hardware Furniture Co. (D.C.) 198 F. 336; Motor Sales Co. v. McNeil, 18 Ala. App. 132, 89 So. 89.
Being a purchaser within the meaning of the recordation statute, and having purchased without notice either actual or constructive of plaintiff's contract, the Gober Motor Company was not guilty of a conversion when it resold the truck.
Having obtained title superior to plaintiff by virtue of the judgment, execution, and sale of the truck under the Gober Motor Company judgment, it becomes unnecessary to pursue the inquiry into the status under the judgment and claim of Smith Chevrolet Company. If the plaintiff has any claim to the proceeds of the sale over and above the amount due Gober Motor Company, such claim is not to be enforced in this action. The court erred as above indicated, and the judgment is reversed, and the cause is remanded.
Reversed and remanded.