50 So. 287 | Ala. | 1909
Lead Opinion
The complaint in this canse, as last amended, consisted of six counts, designated as 1, 2, 3, 4, A, and B. Counts 3, 2, and 3 were in trespass, for the wrongful taking of one bay mare mnle. Count 4 was in trover, for the conversion of the same mule. Counts A and B were also in trespass, count A setting-up the facts constituting the trespass. To this complaint defendant filed six’ pleas; the first two being the general issue, and pleas 3 and 4 attempting to set up the defense that the plaintiff voluntarily surrendered the mule to the defendant. Plea 5 set up that the defendant sold the mule to one J. M. Moore, taking a mortgage thereon for the purchase money, and that, when the mortgage became due, Moore defaulted in its payment, whereupon the defendant sent his agent to Moore for the mule; that Moore told the agent to return the following day, when he could get the mule; that he returned the following day, and Moore then informed him that the plaintiff had the mule and to go and get it; that defendant’s agent- then went to plaintiff and told him he had come for the mnle, whereupon the plaintiff, of his own accord and voluntarily, gave the mule to the agent of the defendant. Plea No. 6 Avas that the plaintiff surrendered, the possession of the mule to the defendant voluntarily, and that prior to the demand for the return and the bringing of the suit, and before defendant kneAV of the plaintiff’s claim, the defendant sold the mule, and did not know where it was; that the plaintiff surrendered the mule in the first
There is in the record a brief of the appellee seeking to have the bill of exceptions stricken upon the ground that the case was tried by Wm. W. Quarles, as special judge holding the spring term of the circuit court' of Marengo county, who as such special judge had no jurisdiction beyond the territorial limits of Marengo county, whereas said judge while in Selma, Ala. (in Dallas county), made and signed an order, extending the time for signing the bill of exceptions. There is an affidavit made by Hon. Wm. W. Quarles, setting forth the facts substantially as set forth in the brief of the appellee. But there is in the record no motion nor copy of a motion which would serve as a basis for this brief; and the writer does not know as a matter of fact whether such a motion was made and afterwards withdrawn. There is no entry on the minutes of this court, nor any motion on its motion docket showing submission upon such a motion; the order of submission showing that the cause was submitted upon the merits merely. It is, however, unnecessary for us to consider whether or not this bill should be stricken, for the rea
Upon the undisputed evidence in this case the plaintiff was clearly entitled to the general affirmative charge upon the count in trover; the special pleas being-eliminated, as they should have been, upon the motion or demurrer of the plaintiff thereto. The evidence is undisputed that the plaintiff purchased the mule in question from one Moore; that Moore had purchased the mule from the defendant prior to the time he sold it to the plaintiff; that Moore executed to the defendant a mortgage upon the mule to secure the purchase price; and that this mortgage Avas not recorded until after the mortgagor, Moore, had sold the mule to the plaintiff, and there is no evidence that the plaintiff had any actual knowledge or notice of the existence of this mortgage at the time he purchased the mule. Section 1009 of the Code of 1896 provided, among other things, that conveyances of personal property to secure debts or to provide indemnity were inoperative against creditors or purchasers without notice until recorded, etc.
There is no phase of the evidence which tends to show that the plaintiff in any way estopped himself from maintaining this action. The testimony of the defendant’s son upon this subject is as follows: That he went to the plaintiff and asked for the bay mare mule which Mr. Moore told him to get from Josh, and that Josh, the plaintiff, delivered the mule into his possession of his own accord and voluntarily; that witness then took the mule and delivered same to defendant. The testimony of the plaintiff on this subject is as follows: “Mr. Neal Harrison (son of defendant) rode up to where the mule was, and caught hold of the bridle, and commenced unhitching her, and took her out of the plow. I went up there where he was, and asked him what he Avas doing. He said his papa sent
The mortgage which the defendant received from Moore to secure payment of the purchase price or a copy thereof was introduced in evidence by the defendant, and the instrument showed that 'it was executed on the 22d day of February, 1905, but was not filed for record until the 6th day of March, 1905. The evidence of the plaintiff tended to show that he purchased the mule from Moore in January, 1905, while' the testimony of Moore tended to show that he sold the mule to the plaintiff in the month of February; but, under all the evidence, the plaintiff had purchased the mule from Moore before the mortgage was recorded or filed for record, and there is no evidence tending to show that he had aqy actual notice of the existence of the mortgage. The plaintiff, therefore, acquired a perfect title as against the mortgagee under any phase of the evidence.
The trial court, at the request of the defendant in writing, charged the jury, first, that unless a demand was made on defendant before the commencement of the suit the plaintiff could not recover for conversion; and, second, that, if the mule was freely and voluntarily delivered to Neal Harrison by plaintiff, then he could not recover in trespass. Both of these instructions were erroneous, because, under the undisputed
The court is also clearly in error in charging the jury that, if the plaintiff freely and voluntarily delivered the mule to the agent of the defendant, then he could not recover in trespass. The mere fact that the plaintiff did not resist or object to the taking could not make the taking rightful which was otherwise a trespass. If the plaintiff had induced the defendant to take the p roperty, then it would be a defense to trespass, but there is no evidence tending to show that he induced the taking. The strongest phase of it is that he did not resist or object.—Smith v. Kaufman, 94 Ala. 364, 10 South. 229. For this reason special pleas Nos. 3, 4, and 6 were wholly insufficient. Plea No. 5 was also insufficient for the reason that it did not deny the plaintiff’s title to the mule, the subject-matter of the suit, nor did it show that the mortgage under which the defend
It is not necessary to consider the other assignments of error, which will probably not be raised upon another trial.
For the errors mentioned, the judgment is reversed, and the cause is remanded.
Reversed and remanded.
Concurrence Opinion
I concur in the conclusion to a reversal of the judgment, but do not concur in all that is said in the opinion of Justice MAYFIELD. I place my concurrence upon the ground that on the undisputed evidence in the case the plaintiff was entitled to the general charge as requested under the count of the complaint in trover.
I do not think that it can be said of pleas numbered 3, 4, 5, and 6 that either or any one of them is frivolous, prolix, or irrelevant,, and for that reason subject to motion to strike. — Code 1907, § 5322. That the pleas were bad to the complaint as a whole, though good as to some of the counts, was matter to be pointed out by demurrer, and not ground for motion to strike.