First National Bank v. Sproull, 105 Ala. 275

First National Bank v. Sproull

105 Ala. 275 | Ala. | 1894

HARALSON, J.

1. The proof does not show the exact date when the Line and Wilson notes were transfered by Laney and Jackson, the payees, to the plaintiff ; but, it does show that they were transferred before their maturity, and that they were the property of the plaintiff and unpaid at the trial of the cause. They each bore the indorsement of the payees, waiving protest and guaranteeing prompt payment. The presumption is, that they were acquired on a valuable consideration. — 3 Brick. Dig. 91, § 130.

2. These notes were secured by the mortgage on the property sold, for which they were given as the purchase price. At the time the notes were assigned and became the property of the bank, the mortgage to secure them was not by delivery merely, or by any written assignment, transferred to the plaintiff. This was done, however, on the 4th of March, 1891 — one day less than a month after the first two notes fell due — the assignment specifying, that it was to secure the bank in a debt due to it by the payees, Laney and Jackson. It was not shown they owed any other indebtedness to the bank besides these transferred notes.

3. The well understood rule is, that the transfer by delivery merely, or by assignment in writing, of a mortgage debt, operates as an equitable assignment to the transferee of the mortgage by which the debt is secured, such as will authorize the transferee to file a bill to foreclose the mortgage, the debt being the principal and the mortgage its mere incident.—Prout v. Hoge, 57 Ala. 31; Williams v. Cox, 78 Ala. 327; O’Neal v. Seixas, 85 Ala. 84; 1 Brick. Dig. 126, § 48. “An assignment of the debt, without an assignment of the mortgage, will not at law pass the legal estate of the mortgagee. That remains with him, clothed with a trust for the assignee.” Welsh v. Phillips, 54 Ala. 309; Prout v. Hoge, 57 Ala. 31, supra.

4. There can be no question, therefore, but that under the transfer of the notes and mortgage as shown in this case, the transferee, the plaintiff, acquired an equitable title to and lien on the property embraced in the mortgage, and having such a *280title and lien, it might maintain an action in tort or for money had and received against any one who, assuming to control, disposed of the personal property embraced in the mortgage.—Sanders v. Cassady, 86 Ala. 248; Barnett v. Warren, 82 Ala. 557; Collier v. Faulk, 69 Ala. 58; Hussey v. Peebles, 53 Ala. 432.

5. In such a case, it is no answer to the complaint, as contended for here, that there was other property in the mortgage, besides that converted by the defendant, to which plaintiff might resort. His security being upon the entire property mortgaged, and the mortgage debt remaining unsatisfied, forbade any one, with knowledge of the incumbrance, to interfere with, and dispose of any portion of it, without causing damage to the plaintiff, to the extent of such unlawful disposition.—Robinson v. Lehman, 72 Ala. 402; Steinhart v. Bell, 80 Ala. 208; Lake v. Gaines, 75 Ala. 143; Thompson v. Powell, 77 Ala. 392.

6. The defense in this case — upon which it was tried, as though a special plea to that effect had been interposed — was, that the defendant was a bona fide purchaser for value of the personal property included in the mortgage, which he purchased from the Birmingham, Laney & Piedmont R. R. Co. for the sum of $4,752.65, and a part of which he sold to the Smith & Kilby Co. for $3,268.20.

We have held that in a proper plea of an innocent purchaser for value, the defendant should not only state the purchase and bona fide payment of the consideration, with circumstantiality of details, but must also deny notice of the outstanding equity, and knowledge as to any fact sufficient to put him on inquiry, previous to and down to the time of paying the money; and the denial must be positive and not evasive.—Gresham v. Ware, 79 Ala. 198; May v. Wilkinson, 76 Ala. 543; Hooper v. Strahan, 71 Ala. 75; Craft v. Russell, 67 Ala. 12; Ledbetter v. Walker, 31 Ala. 175.

And in Boston v. Barton, 75 Ala. 402, as touching the proof necessary to be made to sustain such a plea, it was said : “The rule of proof of bona fide purchase is, that the party pleading it, must first make satisfactory proof of the purchase payment. This is affirmative, defensive matter, in the nature of confession and avoidance, and the burden of proving it rests on him who asserts *281it. Ei incumbit probatio, qui dicit. This done, he need .go no further, and prove he made such purchase and payment without notice. The burden here shifts, and if it be desired to avoid the effect of such purchase and payment, it must be met by counter proof, that, before the payment, the purchaser had actual or constructive notice of the equity or lien asserted, or, of some fact or circumstance, sufficient to put him on inquiry, which if followed up, would discover the equity or incumbrance.”—Wynn v. Rosette, 66 Ala. 520.

In Ogle v. Turpin, 102 Ill. 148, it was said: “There is no presumption of law that the payee of notes secured by mortgage has transferred the notes before purchasing the equity of redemption from the mortgagor, and a person taking a mortgage from the payee will not be held chargeable with notice that the notes secured in the first mortgage, although not due, have been assigned, but he may rely upon the record as showing title in his mortgagor.” In Vann v. Marbury, 100 Ala. 438, we approve this principle as correct, except where the mortgage shows on its face the negotiable character of the notes it secures, in which event, as was said, it might be incumbent on a subsequent purchaser to inquire as to whether the notes had been assigned, citing Keohane v. Smith, 97 Ill. 156; 1 Jones on Mort., § 814.

7. Now, it is shown that the mortgage under which the appellant claims, was duly recorded in the county where the parties resided and the property was situate, within a few days after its execution, and that it contained an accurate description of the notes it was given to secure, which had been transferred, before the maturity of either of them, to the plaintiff, showing that they were commercial paper, each of them being payable at the plaintiff’s bank. The defendant failed to prove that he paid the money for the property he purchased ; but, on the other hand, the proof of the. plaintiff is satisfactory to show, that he did not pay but a small part of it, amounting to $700 at the time of the purchase, and that amount in satisfaction of an account one of the mortgagees owed him, and gave obligations for the balance ; and while yet owing that balance, the plaintiff gave, him notice that it had a mortgage from the original owners, on the rails he had purchased. Nor was it shown that the defendant, at the time he purchased, made any effort *282by inquiries from the payees of said notes and the mortgagees in said mortgage, concerning said notes and mortgage, as to where they were and who held them ; but, he purchased the property, so far as appears, without any inquiry from any one, as to the ownership of said notes and mortgage, without requiring them to be produced, and without any evidence that they had been paid or that his vendor was the holder or owner of them. He appears simply to have trusted the parties with whom he dealt, that it was proper and safe for him to purchase.

It thus appears, that the defendant has failed to make out his defense, and that plaintiff has established its right to recover. The judgment of the court below will be reversed, and the judgment it ought to have given for the plaintiff will be here rendered in its favor, for $1,634.10, the same being for one-half the amount which was secured by the defendant for the personal property in said mortgage which was converted and sold by him, with interest thereon, from the 6th July, 1893, the date of its sale by him, and for the costs in the court below and in this court.

Reversed and rendered.