87 Ala. 551 | Ala. | 1888
Both parties deduce title to the mules, for the conversion of -which appellee sues, from successive mortgages executed by a common mortgagor; the first about January 13, 1885, to J. & T. Davidson, of which firm appellee is the surviving partner; and the other December 15, 1886, to Poliak & Co., of which appellant is the sole member. No question arises as to the claim of defendant to protection as a bona fide purchaser for a valuable consideration, if he took his mortgage without notice of the prior mortgage. The contestation between the parties is, which mortgage has the superior lien; and notice is the pivotal question.
So far as shown by the record, plaintiff asked only two charges, both in relation to implied notice. The first is, substantially, that whatever is sufficient to put a party upon inquiry, is sufficient to charge him with notice, and whenever a person making a purchase, or taking a mortgage, has such information as would put a prudent man on inquiry, and inquiry would lead to knowledge of an adverse prior claim, it is his own folly if he does not act on the information, and make inquiry; and he can claim no protection against a prior mortgage, or other incumbrance, of which he would have been informed if diligent inquiry had been made. The correctness of the legal proposition of the charge is not controverted; but it is specially objected, that there is no evidence on which to predicate it. If the objection be well founded, the charge should have been refused. The court should carefully avoid giving instructions unsupported by any evidence, their tendency being to mislead the jury, and. withdraw their consideration from the material and real issues. But, having been given, it does not authorize a reversal, unless it is apparent that the jury were mislead to the prejudice of appellant. We have substantially stated the charge at length, for the purpose of considering, in connection with it, qualifying instructions asked by defendant, based on the want of evidence tending to prove the fundamental hypothetical fact stated therein — information such as would put a prudent man on inquiry.
It is contended by appellee, in the first place, that there was constructive notice by the registration of the mortgage. All the mules, except three, were, at the date of the conveyance under which plaintiff claims, in the county of Bullock. The three excepted were at that • time in Montgomery county, but, about the first of 1886, were removed to Bullock county, where all the mules remained and were at the time of the execution of defendant’s mortgage. The mortgage to J. & T. Davidson was recorded only in Montgomery county. By the statutes, conveyances of personal property to secure debts must be recorded, both in the county in which the grantor resides, and in the county where the property is at the date of the conveyance; and if removed to another county, it must be recorded, within six months from such removal, in the county to which the property is removed. As against creditors and purchasers without notice, such conveyances take effect from the date of registration; and when the property is removed to a different county from that in which the grantor resides, they cease to have effect
The only witness examined in reference to actual notice is the mortgagor, introduced by plaintiff, who testified, that he had no recollection of ever having told defendant at any time about plaintiff’s mortgage, and that his transactions touching the execution of defendant’s mortgage were with his attorney. It will not be seriously contended, that any inference of actual notice to defendant himself can be drawn from this evidence. This was the entire evidence relating to this matter, except the evidence of the mortgagor, that on the day on which the mortgage was signed, and before it was signed, he informed the attorney, who represented the defendant, that “the Davidsons” had a mortgage on the property. This was denied by the attorney, who further testified that he had no knowledge of it until the commencement of legal proceedings by defendant against the mortgagor for the recovery of the property. By the qualifying charges, this disputed question of fact was properly referred to the jury. . The only fact of which there is evidence tending to show that defendant was informed, is the indebtedness of the mortgagor to J. & T. Davidson. Upon this information, and the additional fact that they were merchants advancing to farmers, and doing business about one hundred and fifty yards from defendant’s place of business, plaintiff claims that implied notice may be inferred. It can not be insisted that the proximity of their places of business is a fact sufficient to put defendant on inquiry as to the prior mortgage. The insufficiency, for this purpose, of knowledge of the indebtedness of the mortgagor, was expressly decided in Bell v. Tyson, 74 Ala. 353, where it is said: “We are aware of no rule of law which makes notice of the existence of a debt to be constructive notice of a secret lien created by an unrecorded mortgage by which such debt is secured.”
The second charge asked by plaintiff is to the following effect: If defendant had no notice of the prior mortgage, and his want of notice was the result of that want of diligence which the law required for its ascertainment; then he is chargeable with notice, and can claim no protection against the prior mortgage. The charges requested by defendant, which we have above considered, were also intended to qualify this instruction, and the foregoing observations apply. It may be further remarked, that the charge is obnoxious to the objection, that it refers to the jury a question of law — • what diligence in making inquiry the law requires of a purchaser. —Drake v. State, 60 Ala. 62; Riley v. Riley, 36 Ala. 496; Thomason v. Odum, 31 Ala. 108.
It appears that the mules in controversy were seized under a writ of detinue, brought by the defendant against the mortgagor. They were taken possession of by the agent of defendant, and kept on the plantation upon which they were when seized, until shortly before the commencement of this suit, when they were removed to another plantation in a different county. On a settlement of the litigation, the mortgagor, after the commencement of this suit, purchased from the defendant six of the mules, which he has in possession. On these facts, defendant asked the court to charge the jury, that he was not liable for the mules returned to the mortgagor. If defendant had committed a previous con
In tbe argument of the cause before tbe jury, counsel for plaintiff contended tbat they bad tbe right to infer, from the failure of the defendant to testify, that if examined be would testify that be bad notice of tbe prior mortgage. To meet this, defendant requested tbe court to instruct tbe jury, that tbe fact tbat defendant bad not been examined as a witness, is no evidence tbat be had any notice of tbe prior mortgage. The rule in sucb case is thus stated by Mr. Wharton: “Tbe refusal of tbe party, under any circumstances, to testify as to any facts with wbicb he is familiar, must lead to tbe presumption which .ordinarily bolds against a. party who withholds explanatory evidence in bis favor.” — 1 Whart. Ev. § 486. To bring a party within tbe operation of sucb an unfavorable presumption, be must occupy a position analogous to tbat of a party who withholds clearer and more satisfactory evidence of tbe matter in dispute, which is in bis power to produce, than tbat wbicb is offered. The facts, to wbicb the witnesses on tbe part of tbe adverse party have testified, must be apparently, or presumably, within bis knowledge. When the evidence is conflicting, or circumstantial, and it appears to be in tbe power of a party to contradict or explain, a presumption can and should be indulged against him, if be should fail to testify without satisfactory reason. In McGar v. Adams, 65 Ala. 106, after declining to decide whether an unfavorable presumption should be indulged under tbe circumstances last stated, tbe court said: “But we do affirm tbat a presumption can not, and ought not, to be indulged against a party who does not introduce and examine himself as a witness, merely to support the uncontradicted evidence, favorable to him, which his adversary introduces.” Neither should sucb presumption be indulged against defendant for not introducing himself to disprove facts essential to plaintiff’s recovery, wbicb be has failed to prima facie establish. He may remain silent, until plaintiff has shown a case wbicb calls upon him to speak in denial or explanation.
At tbe time of tbe execution of the mortgage, tbe mortgagor and tbe counsel of defendant only were present. Tbe defendant bad no knowledge of what then and there occurred, and could neither contradict nor explain tbe testimony of tbe mortgagor. Tbe utmost to wbicb be could have
Ye have examined all the assignments of error pressed in the argument. Several other charges were asked by defendant, as to which, without considering them specially, we remark, that they are either misleading, or suppose facts as a part of the hypothesis of which there is no evidence, or are argumentative, or invade the province of the jury.
Eor the errors mentioned, the judgment is reversed, and the cause remanded.