Opinion
7 Div. 641.
March 18, 1926.
Appeal from Circuit Court, St. Clair County; O. A. Steele, Judge.
Frank B. Embry, of Pell City, for appellant.
The landlord has no lien upon property held by defendant under lease contract. Alford v. Singer Co., 85 So. 584, 17 Ala. App. 325; Ex parte Alford, 85 So. 921, 204 Ala. 697. The property was not that of the defendant, and was not subject to any lien of the landlord, the contract being duly recorded by the claimant. Authorities supra. The claim was filed within the time allowed. Code 1923, § 10375.
M. M. Smith, of Pell City, for appellee.
Appellant's claim came too late. Randolph v. Little, 62 Ala. 396; Lackland v. Rogers, 21 So. 341, 113 Ala. 529; Stanley v. Ehrman, 3 So. 527, 83 Ala. 215; Sherry v. Brown, 66 Ala. 51. Claimant waived its right to declare its indebtedness. Ivey v. Coston, 32 So. 664, 134 Ala. 259.
Trial of the right of property; claimant basing its right upon a conditional sale contract duly recorded. Section 6898, Code 1923. The claim was interposed before a sale of the property, and was not too late under the express language of the statute. Section 10375, Code of 1923.
The authorities cited by counsel for appellee relate to claims of exemptions, and received consideration in Cross v. Bank of Ensley, 87 So. 843, 205 Ala. 274. These authorities are not here applicable, either directly or indirectly by way of analogy. The claimant here was not a party to the suit in which the property was condemned for the satisfaction of the landlord's lien, and the above-cited statute expressly gives to such claimant the right to interpose its claim before a sale thereof. The contention to the contrary is without merit.
Nor do we think the fact that claimant's agent knew the property was to be used in a rented building, and the further fact that the conditional sale contract provided that the purchaser acquire a written release from the landlord (which was never done), suffice to show a waiver of any right to the property on the part of this claimant.
The case of Alford v. Singer Sewing Machine Co., 85 So. 584, 17 Ala. App. 325, by the Court of Appeals, reviewed by this court in Ex parte Alford, 85 So. 921, 204 Ala. 698, is here in point to the effect that the landlord's lien attached only to property of the tenant. It is proper to here note, however, that this decision was rendered prior to the adoption of the Code of 1923, and that, under the provisions of the recording statute as to conditional sale contracts of the present code (section 6898, supra), the landlord with a lien is protected as well as judgment creditors against such unrecorded contracts, differing in this particular from the provisions of section 3394, Code of 1907. This change is not here of importance for the reason that the contract in the instant case was promptly recorded in the proper county.
An examination of the record sufficiently discloses the identity of the property described in claimant's conditional sale contract as that levied upon in the attachment suit. We are of the opinion, therefore, that under the undisputed proof the title of the claimant must prevail. The judgment of the court below is reversed, and one here rendered in favor of the claimant, appellant here.
Reversed and rendered.
ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.