Lefkovitz v. Lester, 66 So. 894

Lefkovitz v. Lester

66 So. 894 | Ala. Ct. App. | 1914

PER CURIAM.

This was an action of trover by the mortgagee of personal property against the mortgagor and the/ purchaser from him of the mortgaged property. Under the evidence there was no room for controversy, and the bill of exceptions does not indicate that there was any controversy in the trial, as to the facts that the property alleged to have been converted was part of the crop covered by the mortgage to the plaintiff, and was grown in the county in which the mortgage was duly recorded before the sale of that property by one of the defendants to the other. The contentions which the defendants (appellants here) sought to sustain were that the sale of the cotton was not a con*507version, because the proceeds were applied on a debt which ivas secured by a landlord’s lien Avhich had precedence of that of the mortgage to the plaintiff, and that the defendants, one of them the mortgagor and the other the purchaser from Mm, did not become jointly liable for a conversion as a result of the sale by the former to the latter.

If the cotton Avas converted by a sale of it in which each of the defendants participated, one as the seller and the other as the purchaser of it, both having notice of the plaintiff’s rights, a joint action was maintainable against them for the wrongful act. — Pippin v. Farmers Warehouse Co., 167 Ala. 162, 51 South. 882; Powell, et al. v. Thompson, 80 Ala. 51. A different rule is not stated in the opinion in the case of Larkins & Moore v. Eckwurzel, 42 Ala. 322, 94 Am. Dec. 651, upon which counsel for the appellants rely. That was a case of a joint action in trover brought against the seller and the buyer of a chattel, Avhere the latter was a bona fide purchaser, without knoAvledge or notice of the plaintiff’s rights. In the case at bar the record of the mortgage charged the buyer Avith notice of the plaintiff’s rights under the mortgage, and he was in no position to claim protection as a bona fide purchaser without notice. — Chadwick v. Russell, 117 Ala. 290, 23 South. 524; Code, § 3386.

The cotton alleged to have been converted was groAvn on land which was owned by one Mitchell. It was sought to be shown that Sharbutt, one of the defendants, rented this land, not from Mitchell, but from one Horton, and that the proceeds of the sale of the cotton were applied on a debt to Horton which was secured by a lien in his favor as landlord. There was evidence tending to prove that Horton acted a Mitchell’s agent in renting the land, and that Mitchell, and not Horton, Avas really *508Sharbutt’s landlord; that the rent due to Mitchell was duly paid by Sharbutt; and, that if the latter owed Horton anything, it was not a debt which was secured by a lien which was superior to that of the mortgage to the plaintiff. Neither of the two special pleas was proved by undisputed evidence. This is apparent on a consideration of the averments of those pleas in the light of the above-named tendencies of the evidence. It follows from what has been said above that the court was not in error in refusing to give written charges 1, 2, 3, 5, and 9 requested by the defendants.

The court is not chargeable with error for overruling the motions of the defendants to exclude what the witness Walton said as to' Max Sharbutt’s signing the mortgage, and to exclude the mortgage, as it could be inferred from the testimony of the witness that, before he attached his name as a witness, he saw both of the mortgagors sign the instrument, though he was uncertain as to whether both signed at the same time;

If there was error in the action of the court in sustaining the plaintiff’s objection to the question asked the defendant Sharbutt as to whether or not “he rented the land from Horton as agent, or just rented it from him straight as landlord',” the error was cured; as subsequently the witness was permitted to state that “the rent note was made payable to James Horton. It was made straight to James Horton, without any agency about it.” The defendant Sharbutt was permitted to give his version of the facts and circumstances of the renting and tenancy. Evidence as to the facts having been let in, the defendants were not entitled to have one of themselves, Sharbutt, state the indisclosed operation of his mind in recognizing or thinking of Horton as his landlord.

*509It is not made to appear that the court ivas in error in sustaining the plaintiff’s objection to the question asked the witness Horton, “What ivas it you wrote him?” referring to a letter or letters written by the witness to Mitchell, the owner of the land. Such letter or letters, unaccompanied by evidence of any reply from Mitchell, could not tend to prove the latter’s assent or agreement to anything stated by Horton. There was no offer to prove the contents of the letters from Mitchell, stated by the Avitness to have been received by him in reply to what he wrote to Mitchell, and there was no evidence of a diligent search having been made for such letters from Mitchell, the witness merely stating that he turned two of them over to his lawyers, and that some of them had been lost. The ex parte statements of the' witness, evidence of Avhich was called for by the question, Avould not, standing by themselves, have tended to prove anything which the defendants were entitled to prove.

In view of the fact that, under the evidence adduced on the trial, the plaintiff was entitled to recover, unless the jury found from the evidence introduced in. support of the defendants’ special pleas that at least one of them was proved, there is nothing for the appellants to complain of in written charge 5 given at the request of the plaintiff.

There is no reversible error in the record.

Affirmed.

Note. — The foregoing opinion was prepared by Presiding Judge Walker before his retirement from the Court of Appeals, and has been adopted by the court.