Sanders v. Knox

Dec 15, 1876
Versions:57 Ala. 80
BRICKELL, C. J.

1. The complaint was originally in the name of two as survivors, and another as the personal representatives of a deceased partner. There was a misjoinder of plaintiffs, the suit being for the conversion of partnership property, the title to which was in the survivors, and in which the personal representative of the deceased partner was without interest. The irregularity was amendable, and it was proper the leave to amend should be granted at any time before the retirement of the jury. There is no limit to the right of amendment under our .statute, except that there must not be an entire departure from the process; an entire change of parties; or the introduction of an entirely new cause of action.—Crimm v. Crawford, 29 Ala. 623; Prater v. Miller, 25 Ala. 320.

2. The objection to the introduction of the mortgage was general and undefined, “ because the same was illegal, irrelevant and incompetent.” On proper evidence of execution, the mortgage was certainly legal, relevant, and competent. It was the evidence of the title of the plaintiffs to the cotton, for the conversion of which a recovery was •claimed. If the want of proper evidence of execution had been particularized as an objection, the plaintiffs apprised of it, would have had the opportunity of removing the objection by supplying the evidence. A general objection of this character cannot be sustained, unless the evidence is manifestly illegal and irrelevant, and apparently incapable of being rendered admissible in connection with other evidence. :Such objections may mislead the party against whom they are taken, and the court, and lead to the practice of making; '■objections in this court, which if made in the primary court *84would have been obviated. We concur with what was said by Collier,, C. J., in Wallis v. Rhea & Ross, 10 Ala. 453: “ Undefined objections should never be made to the admission of evidence; and it may be laid down generally, that if the party making them will not particularize, the court is not bound to cast about for the grounds upon which in the mind of counsel they are rested, but may properly disregard them.”

3. The declarations of Barr when sending the cotton to the appellant were properly admitted. They were parts of the res gestee of parting with the possession of the cotton. Olds v. Powell, 7 Ala. 623. Besides, there was evidence tending to show a delivery to the appellant; as he derived his right from Barr, he was affected by Barr’s declarations made while in possession.

4. The defects in the registration of appellee’s conveyance, destroy its effect as notice to purchasers, or creditors-with a lien, protected by the statutes of registration.—Jones v. Parks, 22 Ala. 446; Dubose v. Young, 10 Ala. 365.

It is, however, only creditors with a lien, or subsequent purchasers without notice, for value, who are protected by the statutes of registration; as to all others, a conveyance is valid and operative, though it has not been registered. Center v. P. & M. Bank, 22 Ala. 743. There is no evidence-tending to- show that the appellant is either a creditor with a lien, or a purchaser for value. The defects in the registration were not consequently available to him.

5. As the case is now presented, the appellant is not entitled to make any other defense than could have been made by the mortgagor. So far as the facts now disclose,he is either a voluntary donee, or mere bailee, acquiring possession from the mortgagor, not by purchase for value,, or by lien. Only such defenses as Barr could have made, are available to appellant. A payment of a mortgage- debt extinguishes a mortgage of personal property, and restores title to the mortgagor.—Harrison v. Hicks, 1 Porter, 423. It is competent for the mortgagor, or one claiming under him, when sued by the mortgagee for the conversion of personal property, to show payment of the mortgage debt. McGowen v. Young, 2 Stew. & Port. 160; Morrison v. Judge, 14 Ala. 182; Geron v. Geron, 15 Ala. 558. The Circuit Court was in error in refusing the admission of evidence-having a tendency to show payment of the mortgage debt.

6. Whatever moneys may have been realized from the-sales of property covered by the mortgage, the appellees*85were bound, in tbe absence of an agreement to the contrary with the mortgagor, to apply to the payment of the mortgage debt. While the general rule is, that a creditor has the right of applying a general payment, unless the debtor when making it specifically directs its appropriation, the rule is, that payments derived from a security for a particular debt, must be applied to its satisfaction.

7. It was not competent for the appellant to impeach the -consideration of the mortgage, and by parol to disprove its express recitals of a present indebtedness to the mortgagee. If he had been a purchaser from Barr for value, or a creditor having a lien, the rule would be different.

8. The right of the appellees to recover the cotton was not affected by their negligence, or failure to claim and make sale of other property covered by the mortgage; as against .a purchaser, or a creditor of the mortgagors, the fact might be of importance, if connected with other evidence impeaching their good faith. As between them and the mortgagor, •or one standing in his place, it is not material. The Circuit Court erred in refusing to give the first charge requested by the appellant, and in the charge given, to which an exception was taken.

For the errors we have noticed, the judgment is reversed, . and the cause remanded.