#### Hurt *v.*Redd & Co.

*Statutory Trial of Bight of Property between Plaintiffs in Attachment and Mortgagee.*

1. *Description of property in mortgage.*— “Eourteen mules, now on my plantation in Russell county,’’ is a sufficient description, in a mortgage, of the property conveyed by it; and parol evidence of the fact that the mortgagor had but one plantation in said county, and that he had on it fourteen mules, renders the description definite and certain, and the property capable of identification.

2. *Sale of mortgaged properly under attachment; right of mortgagee to surplus proceeds, as against junior attachment.*— When mortgaged' personal property is seized under attachment against the mortgagor, before the registration of the mortgage, and is sold as perishable, the lien of the attachment must prevail over that of the mortgage ; butk if the mortgage is duly recorded before the rendition of judgment in the attachment suit, and the proceeds of sale exceed the amount of that judgment, the mortgagee may claim the surplus in the hands of the sheriff; or he may interpose a claim to it, and recover it on the trial of a statutory contest with a junior attaching creditor, whose attachment was levied on it, in the hands of the sheriff, after the registration of the mortgage.

Appeal from the Circuit Court of Bussell.

Tried before the Hon. James B Cobb.

This was a statutory trial of the right of property in and to a certain sum of money in the hands of the sheriff, amounting to $233, between C. A. Bedd *&*Co., plaintiffs in attachment against John W. Hurt, and George T. Hurt as claimant. The money arose from the sale of certain mules, twelve in number, and other personal property, belonging to said John W. Hurt; on which the sheriff had levied a former attachment, at the suit of Flournoy, McGehee *&.*Co., against said John W. Hurt, and which he had sold, while in his possession under the levy, as perishable property; the sum here in controversy being the surplus left in the hands of the sheriff after satisfying the judgment rendered against Hurt in that suit. The attachment of Flournoy, McGehee & Co. was levied on the property on the 9th December, 1876; the judgment in their suit was rendered at the Fall term of said Circuit Court, 1877, and was satisfied out of the moneys in the hands of the sheriff; and the attachment of C. A. Bedd *&*Co. was levied on the balance in his hands, as the property of said John W. Hurt, on the 8th December, 1877. George T. Hurt, the claimant, derived title to this balance under a mortgage executed fo him by said John W. Hurt, *86the defendant in attachment; which was executed in Eulton county, Georgia, dated the 1st May, 1876, and recorded in the office of the probate judge of Eussell county on the 3d March, 1877, which was prior to the sale of the property under the attachment of Elournoy, McGehee *&*Co., but after the levy of that attachment. The mortgage purported to convey a tract of land in Fulton county, Georgia, “ also, fourteen mules, now on my plantation in Eussell county, Alabama.” It was admitted, that neither the sheriff, nor Flournoy, McGehee & Co., had any notice, actual or constructive, of this mortgage, at the levy of the first attachment ; and that the mortgagee claimed the mules, and gave public notice of his claim under the mortgage, at the sheriff’s sale under the attachment. One Chitwood, a witness for the claimant, “ testified that, during the year 1876, he was employed by said John W. Hurt as agent on his plantation in Eussell county, about five miles from Glennville, and lived on said plantation during the whole of that year; that on the 9th December, 1876, while he was living on the place, the attachment of Flournoy, McGehee *&*Co. was levied on twelve mules and other property on said plantation; that said Hurt had on said plantation, on the 1st May, 1876, fourteen mulos, two of which died during the year, and the others were the mules on which said attachment was levied; and that said John W. Hurt never owned during the year 1876, nor claimed to own, any other plantation in Eussell county than that upon which witness so lived, nor any other mules than those above mentioned.” The claimant himself, also, testified to the same facts as to the plantation and mules, and that his debt secured by the mortgage was still due and unpaid. “ In connection with this testimony, the claimant then offered to introduce in evidence his said mortgage, its due execution and record being admitted ; but the plaintiffs objected to its introduction, on these grounds : 1st, that the same was void, so far as it purported to convey the mules, on account of the uncertainty with which they were therein described; and, 2d, because the mortgage purported to convey mules, whereas the property claimed is money. The court sustained the plaintiffs’ objections, and excluded the mortgage from the jury; to which ruling the claimant excepted. And this being all the evidence, the court charged the jury, at the request in writing of the plaintiffs, that they must find for the plaintiffs if they believed the evidence; to which charge, also, the claimant excepted.” The exclusion of the mortgage from the jury, and the charge of the court, are now assigned as error.

*87James P. Mitchell, and Watts & Sons, for the appellant.—

1. The mortgage described the mules with sufficient certainty and definiteness, and the parol evidence in aid of it identified them beyond mistake or *dispute.*— Ellis *v. Sims,*2 La. Ann. 251; *Baker v. Bank,*2 La. Ann. 871 ; *Bank v. Barrow,*21 La. Ann. 396; 24 La. Ann. 518 ; *Witczinski v. Everman,*51 Miss. 841; *Wilson v. Boyce,*92 TJ. S. 320; *Johnson v. Delaney,*4 Oowen, 427; *Pond v. Berg,*10 Paige, 140; J ones on Mortgages, vol. 1, 65-6.

2. The other objection to the mortgage is answered by the following authorities : *Marriott & Hardesty v. Givens,*8 Ala. 694; *Abney v. Kingsland & Go.,*10 Ala. 356; *Garville v. Stout,*10 Ala. 796.

L. W. Martin, *contra.*(No brief on file.)

BRICKELL, C. J.

The mortgage is of “ fourteen mules, now ” (at the time or date of executing the mortgage) “ on my ” (the mortgagor’s) “ plantation in Russell county, Alabama.” It was sufficiently specific and certain. The number of the mules is stated, and the place at which they would be found Parol evidence that the mortgagor had but one plantation in Russell county, and had there only fourteen mules, rendered the property, on which the mortgage was to operate, definite and certain, capable of positive indentification.

2. An attachment was levied on the mules, and other personal property of the mortgagor, before the registration of the mortgage. By the levy, a lien was acquired, which had priority over the mortgage. A sale of the property, as perishable, was made by the sheriff, under the levy of the attachment ; and the proceeds of sale, with the attachment, were returned into court, the aggregate of the sale being $733.93; of which sum $623.50 was the price for which the mules were sold. At the time of the sale, the sheriff, and the plaio tiffs'in attachment, had notice of the mortgage, and that the mortgagee made claim to the mules. The mortgage was recorded before the rendition of the judgment in the attachment suit. A surplus of $233 remaining in the hands of the sh-riff after satisfying the judgment, the appellees caused an attachment to be issued against the mortgagor, and levied upon it. Thereupon, the appellant, the mortgagee, interposed a claim to it under the statute, and an issue was formed to try the right of property. The rulings of the Circuit Court, though made on objections to the admissibility pf evidence, really involve only the question, whether the money was subject to the attachment; and we consider that *88question, without dwelling upon tbe manner in which it was presented.

A surplus of money remaining in the bands of a sheriff, derived from a sale of property under legal process, belongs to the owner of the property; and tbe sheriff, and tbe sureties on bis official bond, are bound for its payment to bim. *State v. Pool,*5 Ired. 105; *State v. Reed, Ib.*351. Tbe lieu of tbe mortgage, though subordinate to that acquired by tbe levy of the first attachment, because of the failure to record it, had precedence of the lien acquired by the levy of tbe attachment in favor of the appellee. Tbe lien of tbe mortgage could not be defeated by tbe excessive sale made by tbe sheriff, and priority given to tbe younger lien claimed by tbe appellee. To prevent such injustice, tbe law, at tbe election of tbe mortgagee, transfers the prior lien to the surplus proceeds of sale, and requires that it should be applied to tbe payment of tbe mortgage *debt.*— Averill *v. Loucks,*6 Barbour, 478. The sheriff may have been guilty of a conversion in selling more of the mules than was necessary to satisfy tbe prior attachment. The mortgagee bad tbe right to waive tbe tort, ratify tbe unauthorized sale, and claim tbe proceeds as money bad and received to bis use. Tbe election was made by a claim to the money, interposed under tbe statute.

Tbe rulings of the Circuit Court were adverse to these views; and its judgment must be reversed, and tbe cause remanded.