Summary
In Malone Motor Co. v. Green, 213 Ala. 635, 105 So. 897, there was a total failure of proof of the lien for the destruction of which suit was brought.
Summary of this case from Walker v. St. Louis-San Francisco Ry. Co.Opinion
8 Div. 744.
October 22, 1925.
Appeal from Circuit Court, Morgan County; James E. Horton, Judge.
Tennis Tidwell, of Albany, for appellant.
The complaint should set forth facts upon which his lien existed, or from which it arose. Kelly v. Eyster, 102 Ala. 325, 14 So. 657. The complaint avers in the alternative that defendant had knowledge of plaintiff's lien or claim, and was subject to demurrer. Donald v. Hewitt, 33 Ala. 534, 73 Am. Dec. 431; Steele v. State, 159 Ala. 9, 48 So. 673; Birmingham Ry. Co. v. Butler, 135 Ala. 388, 33 So. 33; Railway Co. v. Bunt, 131 Ala. 591, 32 So. 507. For failure of proof of lien, defendant was entitled to the affirmative charge. Retained title is not a lien. Warren v. Liddell, 110 Ala. 232, 20 So. 89; Alexander v. Mobile Auto Co., 200 Ala. 586, 76 So. 944; Haynie v. Robertson, 58 Ala. 37; 17 R. C. L. 596; 35 Cyc. 660; Lehman-Durr v. Van Winkle, 92 Ala. 443, 8 So. 870; Alexander v. Auto Co., 200 Ala. 586, 76 So. 944; Thornton v. Dwight Co., 137 Ala. 211, 34 So. 187. A conditional sale contract is void against purchasers for value without notice thereof. Code 1907, § 3394; Simpson v. Hinson, 88 Ala. 527, 7 So. 264.
Almon Almon, of Albany, for appellee.
Brief of counsel did not reach the Reporter.
Conceding, without deciding, that count 3 of the complaint, as amended, is defective in not alleging facts as a basis for the lien asserted (see Kelly v. Eyster, 102 Ala. 325, 330, 14 So. 657) the objection that it "does not allege the character of the lien" is not apt, and is therefore unavailing. As to the second objection, that the count does not allege notice of the lien, because after asserting the lien it alleges knowledge of "such lien or claim," we think it is hypercritical and without merit. The alternative is merely an alternative description of the lien already asserted, as clearly indicated by the word "such," preceding, and not an alternative claim of a different character, as the demurrer incorrectly assumes. The demurrer was properly overruled.
As the verdict of the jury did not respond to the issue presented by the detinue count — there being no finding as to the value of the property, and no finding appropriate to a recovery of the property, or in the alternative for its value — it must be presumed that the verdict was under count 3, on the case, for the destruction of plaintiff's asserted lien.
Section 6898, Code 1923 (section 3394, Code 1907), which protects bona fide purchasers for value, without notice of unrecorded conditional sales, does not change the rule as to what may be sufficient actual notice. The means of knowledge is the equivalent of knowledge, and whatever is sufficient to put one on inquiry is sufficient to charge him with notice of everything to which the inquiry would lead. Alexander v. Fountain, 195 Ala. 3, 70 So. 669; Diamond Rubber Co. v. Fourth Nat. Bk., 171 Ala. 420, 55 So. 100. We think the plaintiff's testimony was sufficient to carry to the jury the question of defendant's knowledge of plaintiff's title and claim, and to support an affirmative verdict on that issue.
But under count 3 it was incumbent on plaintiff to show, as an essential factor in his right to recover, that he had a valid lien on the car, and this burden was not met by showing that he had the legal title and the general ownership. A lien is not and cannot be title or ownership. Alexander v. Mobile Auto Co., 200 Ala. 586, 76 So. 944. An unauthorized conversion of property owned by another gives rise to a right of action in trover, but not in case for the destruction of a lien. And when the plaintiff shows that he has the legal title to the property converted, there is a total failure of proof to sustain such a count in case.
For this reason defendant was entitled to the general affirmative charge as to count 3, and its refusal was prejudicial error.
Let the judgment be reversed, and the cause remanded for another trial.
Reversed and remanded.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.