Carr v. Lester, 90 Ala. 349

90 Ala. 349 | Ala. | 1890

SOMERVILLE, J.

The statutes provides, that “all loans of personal property, not in writing, vest an absolute estate in the person in possession under such loan, as to purchasers and creditors of such person, after three years from the commencement of such loan, unless within that time the lender commence an action at law, in good faith, for the recovery of the property.” — Code, 1886, § 1818.

In Myers v. Peck, 2 Ala. 648 (1841), and again in Gressett v. Agee, 14 Ala. 354 (1848), it was decided that the word “loan,” in this statute, was not to be technically -construed.; that it was not necessary to show that the possession was acquired under a strict contract of bailment, technically called commodatum, or loan for use; but that if owners of personal property parted with the possession voluntarily,- either with or without an express contract, there must be a will, or deed in writing (Code, § 1817) declaring the loan, and duly recorded, “or else the absolute property shall be taken to be with the person who has taken possession, in favor of the creditors and purchasers of the possessor.” — 14 Ala. 358.

In the more recent case of Butler v. Jones, 80 Ala. 436, we further said, that the purpose of tins statute was “to prevent the creation of debts, or procurement of credits, by false appearances, such as would naturally follow in bailments of this character, upon the faith of the possession of personal property by the borrower, who might be supposed to be the true and real owner, and, also, to protect purchasers from the loanee against the defects of his title.”

The evidence in this case shows that the plaintiff, upon going abroad to travel, left the piano in controversy in the possession of Mrs. Richards, the mortgagor, who was her mother, as far back as April, 1882, both of them residing in the same household in Yazoo, Mississippi. Mrs. Richards moved to Birmingham., in this State, in April, 1882, and, by the plaintiff’s request, brought the property with her. It was placed in the parlor of a hotel kept by Mrs. Richards, and was used by herself and the guests until November, 1886, or about four and a half years, uninterruptedly, when the plaintiff returned to reside with her .mother. After this-she used the piano in common with the mother and the hotel guests, claiming it as her property; but she allowed it to remain in the hotel parlor, taking no exclusive possession of it.

Under this state of facts, we see no escape from the viewr, that the law7 will infer a loan, although there was no technical contract between the parties expressly authorizing the use of the instrument by the bailee.—Myers v. Peck, 2 Ala. 648; Garth v. Barksdale, 4 Munf. Rep. 101; Craig v. Payne, 4 Bibb’s Rep. 337; Brainard v. McDevitt, 21 Ala. 119.

The mortgagee, George Lunsford, under whom the defendant holds, was a purchaser for value, and is protected under the provisions of the statute, which operated after three years possession, ex proprio vigore, to vest an absolute estate in the person of Mrs. Richards, the loanee of the property.

The City Court erred in reaching a contrary conclusion. Its judgment is reversed, and a judgment will be rendered in this court for the appellant, who was defendant in the court below.

Reversed and rendered.