Opinion
6 Div. 394.
October 12, 1933.
Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.
Leader Ullman and Samuel Tenenbaum, all of Birmingham, for appellant.
Where an attachment was begun against a nonresident, the complaint filed under Act of September 18, 1915, must set forth the fact of defendant's nonresidence, and statement in the summons of such nonresidence is not sufficient. Gen. Acts 1915, p. 604; Visible Measure Gasoline Dispenser Co. v. McCarty Drug Co., 206 Ala. 588, 91 So. 383. A statutory claim suit or trial of the right of property is not an independent suit which may be inaugurated to determine the disputed title to the property, but is consequential and dependent upon the levy of valid process against a third person. Jackson v. Bain, 74 Ala. 328. Claimant who has complied with the statute is entitled to judgment as matter of law if the return is void on its face or there is no officer's return showing its levy, since such trial presupposes the existence of a valid return and its levy upon the property claimed. McDonald v. Stephens, 204 Ala. 359, 85 So. 746. The landlord's lien as to rent accruing after recording of conditional sale contract is subordinate to such contract. The landlord's lien extends only to rents accrued at the time of notice of title of the conditional vendor. Code 1923, § 6898; Isbell-Hallmark v. Sitz, 22 Ala. App. 229, 114 So. 675; Id., 217 Ala. 51, 114 So. 678; La Rue v. Loveman, Joseph Loeb, 220 Ala. 677, 127 So. 243; Gay v. Radney, 225 Ala. 331, 142 So. 828; In re Roth Appel (C.C.A.) 181 F. 667, 31 L.R.A. (N.S.) 270.
Chas. W. Greer, of Birmingham, for appellee.
There can be no objection to alternative modes of service of process or notice to nonresidents. Code 1923, § 9445 et seq. If a landlord has a prior lien to that of the owner of lease-sale contract, for whatever small amount, the latter cannot prevail in a claim suit after attachment. Brothers v. Russell, 195 Ala. 643, 71 So. 450. Plaintiff in a claim suit makes out a prima facie case by showing the relation of landlord and tenant and that the property attached was under control of the tenant. Jackson v. Bain, 74 Ala. 328; Jones v. Franklin, 81 Ala. 161, 1 So. 199. Thereafter the burden is shifted to claimant to prove title or lien superior to that of the landlord. Ballard v. Patapsco Co., 107 Ala. 710, 19 So. 777; McDonald v. Stephens, 204 Ala. 359, 85 So. 746. The issue was made up by the court, an affirmation on the part of plaintiff that the property levied on was subject to levy, and a denial made by claimant. The claimant only filed a claim bond. Key v. Haynes, 17 Ala. App. 229, 84 So. 563.
The claimant's motion to quash the attachment proceedings was without merit, and was overruled without error. The provisions of the Act of September 18, 1915 (Gen. Acts 1915, p. 604) were not brought forward into the Code of 1923. That act was superseded by the Act of September 25, 1919 (Gen. Acts 1919, p. 557), the provisions of which are embodied in the Code as sections 9430-9434, and the last-mentioned section provides that: "The mode of service provided in the preceding sections shall be an additional mode of service, and not exclusive of any other mode now provided by law."
The claimant cannot question mere irregularities in the proceedings in the attachment suit. It is only where the plaintiff's writ is void that the claimant may attack the levy. Jackson v. Bain, 74 Ala. 328.
Nor has the claimant the right to question the sufficiency of the plaintiff's complaint in the attachment suit. The claimant is not a party to that suit, and therefore the court had the right to disregard its demurrers filed to that complaint, or might well have stricken them from the file, and it was not reversible error to overrule them. Brothers et al. v. Russell Duke et al., 195 Ala. 643, 71 So. 450.
Where a claim is interposed by a third party under section 10375 of the Code, the issue on the trial is whether the property levied on is subject to the writ, and on this issue the plaintiff takes the affirmative, and has the burden of proving that the defendant has such title in the property as is subject to levy and sale under the writ. This burden, as a general rule, is met and a prima facie case made for the plaintiff by evidence showing that the property was in the possession of the defendant at the time of the levy, and the claimant, to meet the prima facie case, may offer any evidence touching this issue that tends to show that the defendant has no such title as is subject to the writ, or that the plaintiff has no lien or is estopped to assert such lien, or that the right and title of the claimant are superior to any claim or right of the defendant. Millitello v. B. F. Roden Grocery Co., 190 Ala. 675, 67 So. 420; Brothers et al. v. Russell Duke et al., supra.
The statute requires the plaintiff to "allege that the property claimed is the property of the defendant in the writ and is liable to its satisfaction." Code 1923, § 10376; Keyser v. Maas Schwarz, 111 Ala. 390, 21 So. 346.
Before the amendment of section 6898 of the Code, including landlords with a lien in the class protected against conditional sales of personal property, where the title was reserved in the vendor unless they could be charged with notice of the vendor's rights, the lien of the landlord which runs against and attaches to the property of the tenant enjoying the protection in the premises was subordinate to the reserved title in the vendor. La Rue v. Loveman, Joseph Loeb, 220 Ala. 677, 127 So. 243; Wells v. Wright, 219 Ala. 261, 122 So. 167, 168.
The purpose of the amendment was to protect landlords "against unknown and unrecorded conditional sales contracts." Wells v. Wright, supra.
The law must now be regarded as settled that the landlord, as between himself and a conditional vendor, can only enforce the lien given by section 8814 on property obtained by the tenant under a conditional sale contract where the title is reserved in the vendor, as to rents accrued prior to the time the landlord is chargeable with notice, actual or constructive. Gay v. Radney, 225 Ala. 331, 142 So. 828; La Rue v. Loveman, Joseph Loeb, supra.
The evidence is without dispute that the conditional sale contract under which the defendant in attachment obtained the property in controversy was recorded on July 25, 1930, in the office of the judge of probate of the county in which the property was situated. Therefore the question presented for decision is whether or not any part of the rent for the month of July had accrued and was unpaid when said conditional sale contract was recorded. The solution of this question depends upon the construction of the provision of the lease between the plaintiff and the defendant in attachment, and the plaintiff's testimony. Stipulations in the lease pertinent to the question are:
"* * * The lessee agrees to pay the lessor, or said agent at the office of said agent in Birmingham, Alabama, on the first day of each month of said term, as rent for said premises the sum of One Hundred and fifty and 00/100 Dollars ($150.00) per month, being at the rate of Eighteen Hundred Dollars ($1,800.00) per annum.
"The lessee has the option to buy on or before January second nineteen hundred and thirty-one at $23,500.00, rents to be credited toward sale price less interest on mortgages. Lessee to pay on September 14. $475, which is one-half of interest and reduction on the second mortgage note secured by this property. Should this option to buy be exercised, the following contract is to be executed; Lessee is to pay $2,035 cash and assume all mortgages on the property, the difference between mortgages and purchase price to either be replaced by second mortgage payable $150.00 per month, or to let unpaid balance be paid $150 per month. * * *
"The plaintiff testified that at the time suit was instituted on to-wit, September 4, 1930, the defendant owed her $150.00 rent for August and $150.00 for September and $50.00 for July. In addition to the $150.00 monthly rent, Coleman had agreed to ray the sum of $475.00 referred to in the written lease by prorating the same over the term of the lease in monthly payments of $54.00 per month. All of this was to come due in September unless she paid the pro rata part which was due prior to that time. She paid the $54.00 for May and June, but did not pay the pro rata on the $475.00 for July, August and September, except $4.00 paid on the July pro rata leaving an unpaid balance of $50.00 for the month of July; that the attachment was precipitated by virtue of the defendant breaching her rental contract and moving her furniture out of the premises rented," etc. (Italics supplied.)
It is perfectly clear that the $50, referred to in plaintiff's testimony, was not any part of the $150 rent reserved for July, but was part of the $475 referred to in the option clause as "one-half of the interest and reduction on the said mortgage note" which the tenant had agreed to pay as the consideration for the option. That Coleman paid in installments as a matter of convenience, no doubt, anticipating that she would purchase at the expiration of the lease, does not change the fact that the $50 referred to was not rent.
The statute, section 8814, Code 1923, gives the landlord a lien "for his rent" only.
We are therefore at the conclusion that no part of the rent reserved for the month of July remained unpaid, and therefore the claimant, and not the plaintiff, was entitled to recover.
The judgment of the circuit court is reversed, and one here rendered in favor of the claimant, appellant here.
Reversed and rendered.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.