Summary
In White et al. v. Hogland, 209 Ala. 537, 96 So. 625, the owner of a mule sold by an officer under a writ of execution directed against the plaintiff's father brought an action in two counts against the officer and the purchaser — one in trespass for taking the mule and the other in trover for its conversion.
Summary of this case from Montgomery v. KirkseyOpinion
6 Div. 881.
April 19, 1923. Rehearing Denied May 24, 1923.
Appeal from Circuit Court, Blount County; O. A. Steele, Judge.
Ward, Nash Fendley, of Oneonta, for appellants.
The execution under which the property was sold, being irregular, and not void, was not subject to collateral attack. Mitchell v. Corbin, 91 Ala. 599, 8 So. 810; Clark v. Spencer, 75 Ala. 49; De Loach v. Robbins, 102 Ala. 288, 14 So. 777, 48 Am. St. Rep. 46. Appellee is estopped to deny the property was that of his father.
Russell Johnson, of Oneonta, for appellee.
Counsel argue the questions raised, but without citation of authority.
If the evidence reasonably satisfied the jury that plaintiff, and not his father, was the owner of the mule, the writ of execution against plaintiff's father, under which defendant White seized and sold the mule, was of course no protection to either defendant, so far as actual damages were concerned. If plaintiff was not found to be the owner, then no such protection was needed, since in that event plaintiff could not recover.
Under the instructions given the jury, there was no question of punitive damages in the case, and the verdict shows that only actual damages were awarded. Hence the error of the charge in its assumption that the writ of execution was void because returnable in less than 20 days (DeLoach v. Robbins, 102 Ala. 288, 294, 14 So. 777, 48 Am. St. Rep. 46; Mitchell v. Corbin, 91 Ala. 599, 8 So. 810), was without materiality and of no prejudice to defendants. Under the evidence, the instruction that the writ was not a protection against liability was correct, notwithstanding it was grounded upon an erroneous reason.
The argument for the general affirmative charge in favor of defendant Reid is based upon the theory of estoppel in pais. "Although there is some authority to the contrary, the general rule is that when a person having title to or an interest in property knowingly stands by and suffers it to be sold under a judgment or decree, without asserting his title or right or making it known to the bidders, he cannot afterward set up his claim." 21 Corp. Jur. 1158, § 159.
Whether, and to what extent, this rule is applicable to infants without contractual capacity, but who have arrived at years of discretion, we need not determine. See 22 Cyc. 548, d, and cases cited in note 24.
However, to create such an estoppel, "it is essential that the purchaser should have been misled by the other's silence, and that he should have been induced thereby to make the purchase." 21 Corp. Jur. 1158, 1159. And, as said in Crary v. Dye, 208 U.S. 515, 521, 28 Sup. Ct. 360, 52 L.Ed. 595:
"There must, however, be some intended deception in the conduct or declarations, or such gross negligence as to amount to constructive fraud."
These were questions of fact — involving inferential conclusions — which could not be withdrawn from the jury, and hence the general affirmative charge for Reid was properly refused, since it left nothing to the jury except the credibility of the testimony tending to establish the estoppel.
These are the only questions argued in brief for appellant, and other assignments of error need not be noticed.
No error appearing, the judgment will be affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.