Meyer Bros. v. Cook, 85 Ala. 417

Meyer Bros. v. Cook

85 Ala. 417 | Ala. | 1888

Lead Opinion

STONE, 0. J.

— The general rule of law is, that the offspring, or increase of female animals, when they come into visible existence and are endowed with independent life, rest under the same title or ownership their dam was subject to, at the time they were brought forth. Partus sequitur ventrem. — Gans v. Williams, 62 Ala. 41. Hence it has been often held that, if the dam, at • the time of parturition, be under mortgage incumbrance,, the offspring passes immediately under the same incumbrance. — Hughes v. Graves, 1 Litt. (Ky.) 317; Forman v. Proctor, 9 B. Mon. 124; Fowler v. Merrill, 11 How. U. S. 375; Evans v. Merriken, 8 Gill. & J. 39; Leavitt v. Jones, 54 Vt. 423; Gundy v. Biteler, 6 Bradw. (Ill.) 510; Jones Chat. Mortg. §§ 149, 150.

The attempt has been made to draw a distinction, when, during the time the property remained with the mortgagor, the offspring so increased in strength and maturity as. to cease to follow the dam. In such case, it has been contended that the mortgage ceases to bind the offspring. We are at *420a loss to conjecture on what principle such a distinction can be maintained. We apprehend, however, that all such seeming rulings rest on an entirely different principle. The exception has been allowed only in favor of bona fide purchasers, who, finding such offspring in the possession of the mortgagor, arbiter of its own movements, and not following its dam, purchased and paid for the same, without notice of the mortgage lien. Such offspring not being mentioned in any recorded mortgage, and there being nothing visible to put the purchaser on inquiry, it was ruled that it would be a fraud on him to take from him the property he had bought and paid for in good faith, and without notice.— Winter v. Landphere, 42 Iowa, 471; Kellogg v. Lovely, 46 Mich. 131. This principle sheds no light on the present case, for Mrs. Cook does not sustain such relation to the property.

The chancellor denied to complainant relief as to the mare Hester, and to the colts she dropped after Meyer Bros, obtained possession under the mortgage. He said: “It is adjudged, ordered and decreed, that the complainant has failed to establish or make out her right to the mare mentioned in said mortgage. As to said mare, defendants are innocent purchasers; and as to any colts foaled since the recovery of possession of the mare by the defendants, complainant has no claim. But, as to any colt foaled between the date of the mortgage and the recovery of the possession of the mare by the defendants, the complainant is entitled to recover in this suit.” Under this ruling, he decreed one colt to the complainant; and from that decree defendants prosecute this appeal.

Under the principle declared above, if the defendants were entitled to the mare under their mortgage, they were equally entitled to the colts, whether foaled prior or subsequent to obtaining possession by them. We have, then, to inquire whether complainant has shown an equitable right to recover the mare; for on that right must depend her claim of property in the colt.

We think the testimony proves that mules were purchased by Mrs. Cook from Robbins, and paid for with effects or moneys which were of her statutory separate estate, and that no _ title papers were taken. The mules, then, were of the corpus of her statutory separate estate. Commencing then with one of these mules, Cook, her husband, made several exchanges, ending with the possession of the mare Hester, dam of the colt in controversy. Mrs. Cook had knowledge *421of, and approved these several exchanges, bnt no paper evidences of title were given or received. She claimed the mare as her property. Under our decisions, the legal title of the mare was not in Mrs. Cook; but she had an equitable right to trace her money or effects into the mare, or to ratify the exchange, and claim the mare as equitably hers. — Bolling v. Mock, 35 Ala. 727; Preston v. McMillan, 58 Ala. 84; Evans v. English, 61 Ala. 416; Pollak v. Graves, 72 Ala. 347; Kennon v. Dibble, 75 Ala. 351; Shelby v. Tardy, 84 Ala. 327.

The doctrine declared above being but an equity — a secret equity, as it is phrased in the books — it will not prevail over a bona fide purchase without notice; and it is claimed for Meyer Bros, that they are bona fide purchasers without notice. We think, under the testimony, they have proved that they ar'e purchasers. This shifted the onus on the defendant, to prove notice, or its equivalent. There was an atempt to prove actual notice to Meyer Bros., but the testimony is in such conflict that we prefer to rest our decision on another principle.

It is contended for appellee, that Cook’s debt, secured by the mortgage, is tainted with usury, and therefore Meyer Bros, are not bona fide purchasers, so as to cut off equitable defenses. If the facts be as alleged, the legal result contended for must follow. — Carlisle v. Hill, 16 Ala. 398; Saltmarsh v. Tuthill, 13 Ala. 390; Wailes v. Couch, 75 Ala. 134; McCall v. Rogers, 77 Ala. 349.

It is shown in the testimony’, without conflict, that there were dealings between Meyer Bros, on one side, and Albert Cook, husband of complainant, on the other, commencing as early as 1877, and continuing to the close of 1881. The dealings consisted in advances made by Meyer Bros, each year, and payments made by Cook at the close of each season. At no time did Cook make entire payment; and the balances were severally carried forward, and made charges in the account of the next succeeding year. According to the testimony of Meyer Bros., the unpaid balance due to them at the close of 1879 was the sum of $680.55, charged in the account of 1880. The unpaid balance of the account of 1880, thus carried, forward and charged in the account of 1881, was $265.61. A note was given for this, including an additional sum to cover prospective advances, and a mortgage given by Albert Cook on the mare Hester, and other property, to secure its payment. One item in the account of *4221880, bearing date in January of that year, is one mule, $130. This is one of the items of the account which left, at the close of the season, the unpaid balance of $265.61. That mule was purchased from Johnson for $102.50, and paid for by Meyer Bros. Three witnesses were examined in reference to this transaction. M. Meyer testifies, that he purchased the mule for cash, and sold it to Cook on a credit, for $130, agreed on. He admits he purchased the mule for Cook, and that Cook had informed him of the particular mule, that it was for sale, and requested him to purchase it for him. Albert Cook testifies, that he alone negotiated the purchase, agreed on the price, and that, at his request, Meyer paid Johnson for the mule. He testifies, further, that there was no agreement as to what he was to pay Meyer. Johnson testifies, that he and Cook negotiated and agreed on the terms of sale; that at Cook’s request he called on Meyer for the agreed price — $102.50; that Meyer paid him, and that he, Johnson, then delivered the mule to Cook. Under this testimony, we hold that the transaction was a loan, or advance of money by Meyer Bros, to Cook; and the interest charged being in excess — greatly in excess — of 8 per cent, per annum, the note is tainted with usury; and this overcomes the defense of bona fide purchase. — Collier v. Barr, 64 Ala. 543.

In recovering the colt, Mrs. Cook got no more than she was entitled to, and the decree of the chancellor must be affirmed.

Dissenting Opinion

CloptoN, J.,

dissents from that part of the foregoing opinion, which holds that usury in the debt secured by the mortgage precludes Meyer Bros, from making the defense of bona fide purchase.