Johnson v. Wilson & Co., 137 Ala. 468

137 Ala. 468 | Ala. | 1902

TYSON, J.

The complaint contains four counts — two of them in trover and two in trespass. To support the counts in trover the right of property, general or special, and possession, or an immediate right of possession, must concur in the plaintiff at the time of the conversion. — Corbitt v. Reynolds, 68 Ala. 378; Elmore v. Simon, 67 Ala. 526; Booker v. Jones, 55 Ala. 266. So, too, in order to maintain trespass for the taking of personal property the plaintiff must show that he had at the time of the taking the actual possession of it or the right of immediate possession. — Cook v. Thornton, 109 Ala. 523.

The mortgages upon which the plaintiffs relied as the source of their title and upon which they predicate their right to the possession of the property, were made to secure the payment of two promissory nates, each payable on the 1st day of November, 1901. By their terms the right of the plaintiffs to take possession of the property was postponed until the maturity of the notes. This being true, the plaintiffs cannot maintain this action for the conversion or taking of property by defendant before the law day of the mortgage. — Elmore v. Simon, supra; Fields v. Copeland, 121 Ala. 644. And unquestionably the burden was upon the plaintiffs to shmv that the conversion or taking occurred after their right accrued to take possession under the mortgages. In other words, they must establish their right of possession of the property a.t the time it was converted or taken by defendant. This they utterly failed to do. It is true, it was shown that a portion, of the cotton alleged to have been converted or taken by defendant, ivas received by him in November, but on. what day of that month is not shown. Novi eorsta-t it was received by him on the first day. — Ala. Min. Land Co. v. The State, 126 Ala. 90. If so, the mortgagor had not made default since he was entitled to the whole of that day in which to discharge his debt. So then the plaintiffs having failed to discharge the burden of proof that was upon them the defendant was entitled to have the affirmative charge requested by him given, and this, too, without regard to which of them had the best claim to. the property.

It may be that upon another trial, the plaintiffs may prove the conversion or taking by defendant of some of the property' after the law day of their mortgages. In that event, the contest will be as to which of them has the superior title to the property. Both claim to have derived their title'from one J. W. Dixon and both by virtue of mortgages, executed by him. • The defendant acquired his mortgage, on. December 10th, 1900, which was filed for record on the 14th day of the same month. The signature to that mortgage is “A. W. Dixon” although it was in fact executed by “J. W.” The plaintiffs’ mortgages were executed in the spring of 1901 and executed by Dixon in his true name. It is not contended that the plaintiffs had actual notice of the defendant’s mortgage or that tliey are not, purchasers for value. The question is, are the}' chargeable with constructive notice of the mortgage held by defendant hv reason of its recordation.

“Conveyances of personal property to secure debts or to provide indemnity are inoperative against creditors and purchasers, Avitlumt notice until recorded,” etc., etc. Code, § 3009. And the recording of such a conveyance in the proper office operates as notice of its contents. Code, § 991.

It may be and doubtless is true that the mortgage executed by J. W. Dixon to the defendant under the assumed name of A. W. Dixon is a valid conveyance inter partes, but it does not folloAV from this, that the plaintiff's who subsequently purchased it from Dixon under his true name are chargeable Avith constructive notice of the mortgage, Avhicli Avas recorded correctly. In other Avords, the record of a mortgage executed in the name of A. W. Dixon is not notice that J. W. Dixon executed it. The na'mes are as entirely different as are the name*, of J. W. Dixon and J. W. Smith. Had Dixon assumed the name of J. W. Smith and executed the mortgage signing that name instead of his true name, it could hardly be doubted, although he bound himself, that the record of it Avould not have operated as notice to the plaintiffs. — Mackey v. Cole, 79 Wis. 426; Phillips v. McKaig, 36 Neb. 853.

The case of Fincher v. Hanegan, 24 L. R. A. 543, cited by appellant’s counsel only involved a, mistake in the initial letter of the middle name of the mortgagor. In that case the. mortgagor executed the first mortgage by his true Christian, name and surname. The court held that the middle letter was immaterial as the law recognizes but one Christian name. It is, therefore, not an authority upon the question here involved, if abstract!* sound, of which we express no opinion. •

The mortgage offered in evidence by defendant Avas properly excluded. Nor did the court commit' an error in excluding the fact that defendant sold the mule to Dixon and that the mortgage; held by him was given for the purchase price of the mule-. The mortgage being inoperative as against the plaintiffs, it A*ras immaterial how or from whom Dixon acquired the mule, lie had the title to it and when he executed the mortgages to the plaintiffs, they, being bona fide purchasers for value, acquired the title and are entitled to recover in the action if the conversion or talcing by defendant took place after the law day of their mortgages. In making this statement, we have not overlooked the contention that the plaintiffs agent consented to the taking of the property by (1 efendant. We doi not construe the testimony as showing such an assent on the part of the agent. But even if it is susceptible of such an inference, he was under the testimony, clearly without authority to make it so as to bind his principals. He was a. mere collecting agent and could relinquish no rights of theirs or recognize any adverse claim without their express authority. Bynum v. Southern Pump & Pipe Co. 63 Ala. 462; M. & G. R. R. Co. v. Cogsbill, 85 Ala. 456.

Reversed and remanded.