104 Ala. 383 | Ala. | 1893
The appellants sued in trespass to recover damages for the alleged wrongful seizure and sale of personal .property by the sheriff, by virtue of an execution issued upon a judgment recovered against one W. S. Roden.
In August, 1888, Roden executed a mortgage to plaintiffs on a mule and yoke of oxen. This mortgage became due in October, 1888. In June, 1889, he executed a second mortgage to plaintiffs, which became due in October, 1889, conveying a certain black mare and. one yoke of oxen. The second mortgage declares that the mare was advanced to Roden by the mortgagees, and it is stipulated, “that they retain the title to all the property advanced by them, until this mortgage is settled.” The judgment in this case was recovered in March, 1889,
If the mare was the property of the plaintiffs at the time of the execution of the second mortgage, and was sold by them to Roden, reserving the legal title until the mortgage was paid and the mortgage debt was past due and had not been paid, the seizure and sale by the sheriff was a wrong as to the plaintiffs for which trespass would lie. If we regard the instrument as showing only a conditional sale of the mare, the time of payment having transpired before the levy of the execution, Roden’s possession was at the mere will of the plaintiffs. They had the right of immediate possession. It was so decided in the case of Fields v. Williams, 91 Ala. 502. Or if the second instrument be held to be a mortgage and not a conditional sale, the law day having passed, the mortgagees were the owners and entitled to the immediate possession, and in this capacity could maintain trespass. — Dunlap v. Steele & Vandergrifi, 80 Ala. 424; Boswell v. Carlisle, 70 Ala. 244; Nelson v. Bondurant, 26 Ala. 341; Davis v. Young, 20 Ala. 151.
As to the ownership of the mare, the evidence tended to show that after the law day of the first mortgage, the mortgagor and plaintiffs agreed that the mule conveyed in the mortgage should be the property of the plaintiffs, and Roden agreed to hold it as their property. Subsequent to this time, Roden obtained permission from them to exchange the mule for the mare, and held the mare under this agreement as their property. If the mule by the agreement became the property of the plaintiffs, and with their consent, the mule was exchanged for the mare, certainly the mare was their property also. Whether any-such agreement was made, was a fact for the jury.
The statute declares ‘ ‘ a mortgage of personal property not valid, unless made in writing and subscribed by the mortgagor.” — Code, § 1731. But there is no such provision as to sales of personal property. The court erred in giving the affirmative charge for the defendant.
Reversed and remanded.