14 Ala. 55 | Ala. | 1848
The mortgage under which the plaintiffs claim the slave in question was executed in Georgia, and its validity must be determined by the laws of that State. It is well settled in this court, that in the absence of opposing proof, it will be intended that the common law of England, so far as applicable to our institutions, is in force at least in the States once subject to its influence. Applying the principles of this system, and we can discover nothing to affect the operation of the mortgage where it was made ; indeed, it is not denied that it was valid in Georgia. Assuming this to be the case, it must be an operative security in this State, unless there be something in our laws limiting or
It is enacted by the act of 1823, “ to prevent fraudulent conveyances,” that “ all property mortgaged, or under any deed of trust, or other legal incumbrance, which may afterwards be removed to any county in this state, shall be liable to the payment of any debts which the holder of such mortgaged property may contract, after his settlement in such county ; unless the mortgage, deed of trust, or incumbrance covering such property removed as aforesaid, shall be duly recorded in the clerk’s office of the county court of the county to which such property may be removed, within six months; unless the person bringing such incumbered property into any county in this state, shall have removed from another state, in which case, one year shall be allowed for the recording of any such mortgage, deed of trust, or other legal incum-brance, after such settlement as aforesaid.” Clay’s Dig. 255, § 4. The time prescribed by this act, within which a “ legal incumbrance” on property brought from another state to this, must be recorded, is one year after the “ settlement” of the party bringing it; and the consequence of a failure thus to record the incumbrance, is a liability of the incumbered property to the payment of the debts of the holder, contracted after his settlement here. In no just sense can the purchaser of mortgaged property removed to this state, be said to be the creditor of his vendor. No debt is created in his favor, and if the property is delivered and paid for, th e transaction is closed; but if the purchase money is not paid, the vendor becomes a creditor pro tanto, and the vendee trusts him for the validity of the title and the soundness of the chattel. The mere contingency that there may be a breach of these latter stipulations, cannot make the vendor a debtor of the vendee, until it actually occurs; and the liability of the vendor in the present case, does not become complete until the plaintiffs recover the slave. In Avent v. Read, 2 Stew.
It has been decided, where a mortgage of personal property is recorded according to the laws of the state where it was executed, if the mortgagor afterwards move into another state, and take with him the property, registration of the mortgage in the latter state is not necessary to its validity. Offutt v. Flag, 10 New Hampshire Rep. 46. See also, Harmon v. Tuft, 1 Tyler’s R. 9; Bruce’s Administrators v. Smith ; 3 Har. & Johns. Rep. 499. By a statute of Maryland, a mortgage of personal property, of which the mortgagor retains possession, is void so far as the rights of creditors are concerned, unless acknowledged and recorded as therein directed; but although not recorded at all, or within the time, it has been held effectual against the mortgagor and all claiming under him. Claggett v. Salmon, 5 G. & Johns. Rep. 314. The citations we have made abundantly show, that the effect of an omission to register a deed must depend upon the terms of the statute which makes registration necessary; and that it does not follow, if an unrecorded deed be void against creditors, it is inoperative against purchasers without notice.
In the P. & M. Bank of Mobile v. Willis & Co. 5 Ala. R. 770, it was regarded as an established principle, that in the case of a mortgage of chatties, the retention of possession by the mortgagor up to the period of forfeiture, is entirely consistent with the deed, although there is no express stipulation to that effect; and of consequence it does not make the security prima facie fraudulent. We also said, “It maybe conceded that it is in general the duty of the mortgagee to avail himself of his security when the mortgage becomes for
In Doe ex dem Duval’s heirs v. McLoskey, 1 Ala. R. 708, it was held, that the mortgagee, in the absence of a stipulation to the contrary, is entitled to the possession of the mortgaged property, at least from the time the mortgage is forfeited ; and may either sue at law to recover the debt, or the the mortgaged estate ; or he may go into equity and obtain a decree of foreclosure and sale. This being the case, the
It is supposed by the defendant in error, that as the jury would have been justified in finding for the defendant under the second charge, that the judgment cannot be reversed for the error of the first. All the facts were before the jury for their consideration, and it cannot be known whether they did not discard some, and give credence to others, or on what grounds they rested their verdict. The first charge may have inclined the scale against the plaintiffs, and the last have had no influence. In this state of inexplicable uncertainty as to the influences which operated upon the jury, we cannot attribute their finding exclusively to so much of the ruling of the court, as is agreeable to law. The judgment of the circuit court is consequently reversed, and the cause remanded.