98 Ala. 310 | Ala. | 1893
Tbe action was by appellants against tbe appellees. Tbe complaint contains two counts, tbe first, in trpver, and tbe second, in case. Tbe count in case avers tbe destruction by defendants of plaintiffs’ lien upon certain personal property, created by mortgage to plaintiff, excuted by William Curry, April 7tb, 1887. Tbe count in trover is for tbe conversion of tbe same property. Tbe defendant pleaded tbe general issue, and by way of further defense pleaded specially, in pleas Nos. 2, 3 and 4. Tbe court overruled plaintiffs’ demurrer to defendants’ special plea No. 4. It is from tbis ruling of tbe court that tbe present appeal is prosecuted. Under tbe general law, an appeal could not lie from tbe judgment of tbe court upon tbe demurrer to a plea. —Collins v. L. & N. R. R. Co., 70 Ala. 533; Mabry v. Dickens, 31 Ala. 243. Tbe act of tbe legislature by which tbe City Court of Anniston was created, provided specially for appeals within thirty days from judgments rendered upon tbe pleadings. — Acts of 1888-9, p. 564. Tbe 4th plea of tbe defendant, shows that plaintiffs were second mortgagees, and that tbe mortgagor abandoned tbe property and that defendants took possession of, and converted tbe property under tbe authority acquired by a third mortgage. Tbis plea further shows that after tbe suit was instituted by plaintiffs, but before any order was made in tbe case, or plea filed, tbe defendants bought tbe property from tbe first mortgagee, whose mortgage bad been regularly recorded, the law day of wbicb bad transpired, before tbe commencement of tbe action, and that plaintiffs never bad possession of tbe property. The plea avers that a large sum was due and unpaid on tbe first mortgage, but does not state what amount, nor does it aver tbe value of tbe property. Tbe question presented is, whether tbe title and interest acquired by tbe purchase from tbe first mortgagees, and tbe facts averred present a complete defense, to both counts of tbe complaint. A distinction exists between matters of defense arising after issue joined, and when it arises pending suit, but before issue is joined. Tbe former must be pleaded puis darien continuance; the latter is a plea in bar to the further maintenance of tbe suit. This is the rule declared in Dryer v. Lewis, 57 Ala. 554; McDougal v. Rutherford, 30 Ala. 253. The general rule is, that to entitle recovery in trover, tbe plaintiff is required to prove property in himself and tbe right to possession at tbe time of tbe conversion.—Corbitt v. Reynolds, 68 Ala. 378. Possession may be sufficient evidence of ownership to sustain tbe action against a wrong doer. In a court of law, after default, tbe legal title passes
We have stated, that in a court of law after forfeiture, the legal title vests-in the mortgagee, and the default goes to the whole property—Thompson v. Thornton, 21 Ala. 808. The mortgagee thus invested with the entire legal title may sell and convey the property, to a 'third person.—Downing v. Blair, 75 Ala. 218; Walsh v. Phillips, 54 Ala. 309; Scott v. Ware, 65 Ala. 174; Jones on Chat. Mortg., § 454.
In a court of law after default the mortgagee is the absolute owner of tbe property subject only to the equitable right of redemption and such rights as grow out of this equitable right of redemption. The mortgagor can convey no greater right than he owns. Consequently a second mortgagee could not maintain trover against a prior mortgagee or .the vendee of a first mortgagee.. The latter holds a superior title. This was expressly decided in the case of Landon v. Emmons, 97 Mass. 37. A mortgagor can mortgage his equity of redemption, and this was the estate acquired by the plaintiff by Iris second mortgage. He had an equitable lien by virtue of his mortgage upon the equity of redemption. Case will lie to recover damages for the conversion or destruction of property upon which a party has a mere equitable lien, upon the general principle that when there is a tortious act from which damage results, the law must furnish a remedy, rather than the wrong shall go unredressed.—Hurst v. Bell, 72 Ala. 340; Hussey v. Peebles, 53 Ala. 432; Lomax v. LeGrand, 60 Ala. 537; Elmore v. Simon, 67 Ala. 526; Thompson v. Powell, 77 Ala. 392. The count in case as that in trover was in legal form and not subject to demurrer. The defendant’s -plea showed an outstanding legal title in the first mortgagee, superior to that of plaintiff, with which by his purchase from the first mortgagee he connected himself. If the facts averred in the plea, were found to be true, they furnished a complete bar to the further prosecution of the suit in trover. By the purchase from the first mortgagee, the defendants acquired all rights and could make all meritorious defenses to an action on the case for the conversion of the property or the destruction of plaintiff’s equitable mortgage, that the first mortgagee might have made, had the suit been instituted against him, except perhaps as to a question of cost to be hereafter referred to. We have seen that after forfeiture the mortgaged property became vested in the first mortgagee. He was authorized to sell the same and convey the legal title and ownership of the property to a purchaser. His rights to the property fnd that of his
Prima facie a mortgagee who, after default, takes possession of the mortgaged property, and converts the same or in any manner disposes of it, is not liable for such action. Prima facie he lias done only what the law allows him to do. To make him liable in such a case, it is necessary to aver and prove, the act was wrongful and that damages were sustained ; and to show damage it is necessary to aver and prove, that the property was more than sufficient to satisfy the debt secured by the first mortgage. In such case the recovery would be the difference between the value of the property and amount of the debt for which the property was appropriated under the prior mortgage. The rule here declared does not militate against the principle that no one shall take advantage of his own wrong, but proceeds upon the principle that the plea shows prima facie no wrong lias been done to plaintiff, to his injury. We therefore hold the facts averred in the plea were a full answer in bar to the further prosecution of the suit under the pleadings. Plaintiff might have replied to the plea, and averred the facts necessary- to authorize a further maintenance of the suit, in accordance with the principles of law as we have declared them.—Ewing v. Blount, 20 Ala. 694. There is no objection made to the plea, because it fails to -offer to pay the cost which had accrued, before the purchase of the property and the filing of the plea. We are not permitted to consider any causes of demurrer not specially assigned. — Code 2690, and authorities cited.
The plaintiff was entitled to his cost accruing before plea No. 4 was filed.
There is no error in the record.
Affirmed.