62 So. 308 | Ala. Ct. App. | 1913
— The plaintiff’s claim to the property sued for was based upon a chattel mortgage. It is contended in behalf of the appellant (defendant below) that, because of a statement made to him by the plaintiff’s representative on the occasion of a partial payment being made on the secured debt after the law day of the mortgage to the effect that the plaintiff would “carry” the defendant till fall, the plaintiff was not entitled to maintain the suit, brought before that time, without having previously made a demand on the defendant for the possession of the property.
It is conceded in the argument that the mortgagor did not as a result of that occurrence secure the right to an extension of the time of payment of the debt, as a partial payment on a past due debt is not such a consideration as is required to support an agreement to that effect. — Scott v. Scruggs, 95 Ala. 383, 11 South. 215; 9 Cyc. 900. The claim is that, though the agreement relied on was lacking in an essential feature of a valid contract, yet it had such an effect that the mortgagee, within the period mentioned, was not entitled to sue for the mortgaged property without a previous demand on the mortgagor for the possession of it. We are not of opinion that this claim can be sustained.
On the failure to pay the mortgage debt when due the mortgagee became entitled to the immediate posse's
No good reason has been suggested, and none has occurred to us, to justify the conclusion that an agreement unsupported by consideration which the law recognizes is any more effectual to impair or postpone the mortgagee’s right to immediate possession, or to annex a condition to his right to sue therefor, than it is to secure to the mortgagor an extension of the time of payment of his debt. Such an invalid agreement is without effect upon the rights of either party to the mortgage. That occurrence left the mortgagee with the same right to immediate possession of the mortgaged property that it had before.
A previous demand is not required to authorize one to maintain detinue unless it is necessary to change a rightful possession into an unlawful detention. — Foster v. Johnson, 13 Ala. 379; Worthington v. A. G. Rhodes & Son, 145 Ala. 656, 39 South. 614. And it seems that the failure to make a previous demand in such a case affects only the plaintiff’s right to recover damages for the detention of the property prior to the commencement of the suit (Lowson’s Adm’r v. Lay’s Ex’r, 24 Ala. 184; Daniel Bros. v. Jordan & Son, 146 Ala. 229, 40 South. 940), so far as his right to recover the thing sued for is concerned the service of the writ being regarded as a sufficient demand (Vaughn v. Wood, 5 Ala. 304; Bell v. Pharr, 7 Ala. 807; 6 Ency. of Pl. & Pr. 650).
This being true, and as, in view of the fact that the verdict and judgment in this case awarded no damages at all for the detention of the property, it is apparent that the appellant suffered no injury as the result of the failure of the appellee to demand possession before
Affirmed.