| Ala. | Apr 22, 1915
Appellee sued one B. L. Nix in detinue, to recover one small black mare mule. Nix suggested appellants as claimants and owner of the mule, and, after notice, they appeared and defended. Plaintiff and the substituted defendants both claimed title by virtue of mortgages executed by Nix, the original defendant. Appellants’ mortgage was prior to one of appellee’s mortgages, but subsequent to another. Appellants and Nix claimed that appellee’s prior mortgage was satisfied by the taking of the subsequent one, while appellee claimed that the second mortgage was only additional to or collateral security for the first. This was one of the disputed facts, Avhich, when correctly settled, would determine the rights of the parties except as to a question of estoppel, Avhich, if established, might prevent the appellee from asserting his title against the appellants. The question of estoppel, if it exists, arises as follows: Appellee had, for some time prior to the date of appellants’ mortgage, furnished Nix Avith supplies, and had taken mortgages to secure the indebtedness. Nix being unable to meet the payments, and appellee being desirous of collecting the debt and closing-out his mortgages, Nix applied to appellants for the loan or advance of money to pay and satisfy the debts due the appellee. Appellants instructed Nix to get from appellee a statement as to the amount Avhich Nix Avas owing. Nix did this, and delivered the statement to appellants, who thereupon gave Nix a check, payable to appellee, for the amount shown to be due by the statement. This check had Avritten in the corner thereof, “Balance due in full to date by R. L. Nix.” Appellee accepted this check, collected the proceeds, and delivered to Nix some mortgages, accounts, etc. Nix then executed a mortgage to appellants for $600, including the money advanced for him to appellee, and that for
(1) Appellee contends that the last mortgage was only additional or collateral security, and not a mortgage in satisfaction of the first. If appellee knew that appellants were lending the money with which Nix was to pay his indebtedness due appellee, and then represented to appellants, or led them to believe, that the statement rendered covered all the indebtedness due him from Nix, and appellants relied on that statement, in advancing the money to Nix with which to discharge this debt, and appellee accepted the money knowing that appellants were so relying upon the statement as showing all that Nix owed him, then appellee would be estopped from setting up his prior mortgage on this mule, as against the appellants, who had been so deceived by the statement rendered by appellee to them. This court has spoken as follows on this subject: “The estoppel relied upon is known as an equitable estoppel, or estoppel in pais, and the law on the subject is well settled. ‘The vital principle [says Herman] is that he who, by his language or conduct induces another to do what he would not otherwise have done, shall not subject such person to loss or injury by disappointing the expectations upon which he acted. Such a change of po
“If a man, whatever his real meaning may be, so conducts himself that a reasonable man would take his conduct to mean a certain representation of facts, and that it was a true representation, and that the latter was intended to act upon it in a particular way, and he with such belief does act in that way to his damage, the first is estopped from denying that the facts were as represented.” — Carr v. London & North Western Railway Co., L. R. 10 C. P., 317.
“A party who negligently or culpably stands by and allows another to contract on the faith and understanding of a fact which he can contradict cannot afterwards dispute that fact in an action against the person whom he has himself assisted in deceiving.” — Gregg v. Wells, 10 Adol. & E. 90.
“If any person, by actual expressions or by a course of conduct, so conducts himself that another may reasonably infer the existence of an agreement or license, and acts upon such inference, whether the former intends that he should do so or not, the party using that language, or who has so conducted himself, cannot afterwards gainsay the reasonable inference to be drawn from his words or conduct.” — Cornish v. Abington, 4 H. & N. 549.
See, also, Swan v. North British A. Co., 7 H. & N. 601.
(2) If the last mortgage given by Nix to appellee was given and taken in satisfaction of the first mortgage, then appellants had the prior and paramount title to the mule, and should have recovered, Avhatever the jury might find on the question of estoppel. As before stated, however, this was a disputed question of fact, and appellants requested the court in writing to charge the jury as follows: “If the jury believe from the evidence that the $110 mortgage was given in settlement of the $130 mortgage, and that- at the time he took the $110 mortgage, he had notice that Graves & Gross held a prior mortgage on this property, then plaintiff cannot recover.”
The court refused this charge, and its refusal was reversible error. The charge asserted a correct proposition of law, which was strictly applicable to the issues and the evidence.
(3) The rule applicable was stated by this court as follows, in the case of Daniels v. Jordan, 146 Ala. 231, 40 South. 940: “The payment and satisfaction of the mortgage through which the defendant claimed title was an issue in the case; the plaintiff alleging that said mortgage had been paid off and satisfied and the defendant denying this. * * * As to whether a second mortgage, given in renewal of a prior mortgage, operates a payment and satisfaction of the older mortgage depends upon the intention of the parties, and is necessarily a question of fact, which fact, as any other fact, is one for the determination of the jury.”
Reversed and remanded.