RICHARD J. STANSEL, PLAINTIFF IN ERROR,

v.

ANDREW J. ROUNTREE AND SAMUEL S. ROUNTREE, PARTNERS USING THE FIRM NAME OF ROUNTREE & CO., DEFENDANTS IN ERROR

Carter, J.:

On September 25, 1893, defendants in error interposed a claim to certain personal property levied on by the sheriff of Madison county under a writ of attachment in favor of plaintiff in error, against David Brown, June Brown, Daniel Brown and Handy Brown, by making affidavit that said property belonged to them, and giving bond payable to plaintiff in error, conditioned as required by our statutes. The writ of attachment does not appear in the record, nor does the record show when it issued, nor the date of the levy. The claim proceeding was tried October 12, 1894, in the Circuit Court of Madison county, and the jury found for claimant. Plaintiff in error moved for a new trial, which was overruled, and from the judgment entered upon the verdict sued out this writ of error. Rountree & Co. based their claim to the property upon an instrument in writing, as follows: “Georgia, Brooks county. By the 1st day of January, after date, we or either of us promise to pay Rountree & Co. or bearer, one hundred and twenty-ñve and 99-100 dollars, with interest from maturity at eight per cent, per annum, and reasonable charges, not less than ten per cent, for attorney’s fees, if any are incurred in the collection hereof, hereby waiving and expressly renouncing all homestead and exemption rights, for value received: One bay mare, colt and one bay horse. And to secure the payment of said indebtedness I hereby bargain, sell and convey to the payees of this note, their heirs and assigns, the following property, which is expressly declared to be my individual property, free from any lien whatever to-wit: one bay mare about thirteen years old, and colt, one roan Texas horse about four years old bo’t of Mr. Theus; and Dan Brown’s m’tg’s one mare mule about twelve years old named Pet, and one bay mare mule about seven years old, same stock mortgage in mortgage signed with June Brown, one mouse colored Texas mule about eight years old named-mortgaged by Handy Brown; also one sorrel pony Charlie; and in case of failure to pay said indebtedness at the maturity thereof, the payees of this note, their agents, attorneys, heirs or assigns are hereby irrevocably authorized and empowered to seize and take possession of said property, and to sell the same for cash at public outcry in front of the court house door in said county, after having advertised said property at said court house door for ten days by written or printed notices, and apply the proceeds of said sale to the payment of said indebtedness and all costs of said sale, including ten per cent, additional for further attorney’s fees, and the balance, if any, to be subject to my order. And the payees pf said note, .their agents, attorneys, heirs and assigns are fully authorized to bid at said sale and to make a fee simple .title to the said property to the purchaser or purchasers.

Witness my hand and seal this January gth, 1893.

Signed, sealed and delivered in presence of, L. M. Rodgers, Lewis Joiner, N. P. B. C. Ga. “Daniel Brown, L. S.

“Handy Brown, L. S.”

Although the trial was had after the debt mentioned in this instrument had matured, there was nothing to show that this debt was not paid by the Browns at maturity.

Evidence intended to show that under the laws of the'State pf Georgia this instrument was a conveyance passing title, and not a mere mortgage with power of sale was introduced by claimants; also evidence tending to prove that the property therein described fwas the identical property involved in the claim proceeding. This property after tjie execution of the instrument above set forth remained in possession of ¡the Brpwns until the claim was interposed, and i.t seems to have been re-delivered tp the Browns by claimants after obtaining possession of same under their .claim proceedings. There was n.o evidence .to show that the property was in the State of Georgia at the .time of the execution of the instrument affoye mentioned, but it does appear that some itime in the Spring or Summer pf 1893, the property was remove,d from Georgia to Flprida by the Browns.

The only question presented for adjudication is whether the evidence is sufficient to support the verdict. Plaintiff in error contends that the conveyance to claim ants from the attachment defendants was a mere mortgage conveying no title sufficient to authorize the interposition of a claim. Defendants in error contend that the conveyance was, under the laws of the State of Georgia, not a mortgage, but a deed passing title, and that the same construction should by reason of private international law be given to it in this State. We regard it as immaterial whether the instrument is to be treated as a deed or a mortgage, because under our view of the nature of a claim proceeding, we think it essential that claimants should have a right of present possession to enable them to maintain a claim to the property levied upon. This instrument, whether deed or mortgage, by authorizing claimants to take possession of the property upon default in payment of the debt at maturity impliedly leaves possession of the property with the Browns until such default, and the parties themselves seem to have so construed it. No default in payment qf the debt had happened at the time the claim was interposed in this case, for the debt was not then due. In Price v. Sanchez, 8 Fla. 136, text 143, this court said that the claim proceeding is a substitute for the action of trespass or trover at common law, and differs only in its being summary and not having formal pleadings. A claimant should not be permitted to deprive an officer of the possession of property levied upon unless his right to possession is superior to that of the officer; nor can he maintain trespass or trover at common law for injuries to, or conversion of, goods and chattels unless he has a right to present possession of such property. Valuable, temporary or limited interests in personal property would be practically exempt from execution if the ultimate owner is permitted to recover the property from an officer before his right to reduce it to possession had accrued. In order to maintain a claim under our statute, the claimant must not only have some right in the property superior to the writ levied upon it, but he must have a right to present possession of such property. Freeman on Executions, § 277; Allen v. Russell, 19 Texas, 87; Willis v. Thompson, 85 Texas, 301; Kirschenschlager v. Armitage Herschel Co., 58 Mo. App. 165; Sawyer Paper Co. v. Mangan, 60 Mo. App. 76; Hamilton v. Mitchell, 6 Blackf. (Ind.) 131; Philbrick v. Goodwin, 7 Blackf. (Ind.) 18.

The judgment is reversed and a new trial granted.