50 So. 893 | Ala. | 1909
Action, by appellee against appellant, for breach of warranty in the sale of a horse; the alleged breach consisting in the existence of an outstanding incumbrance upon the animal created by one Rolen, an original purchaser thereof from the Dothan Mule Company. The court sustained plaintiff’s demurrers to pleas 2 and 3, and counsel for appellant insist, in brief, that this action was error. There are no •assignments of error questioning such rulings. We "must, accordingly, refrain from considering them. The ■only errors assigned are those predicated upon the giving of the general affirmative charge for the plaintiff, and, on the other hand, its refusal to the defendant. The trial was solely upon issues made by a general traverse of the allegations of the- complaint.
The character and basis of the action has been indicated. Several questions are mooted and discussed in "brief for appellant; but according to our view they can
Bolen bought the horse from the Dothan Mule Company. ' He, paid part of the purchase money in cash, and gave a mortgage, covering the animal, to secure the balance. Bolen was an infant at the time, and had not, when this suit was instituted, attained his majority. He sold the animal to defendant; the testimony, as appears from the bill, which purports to contain all the evidence, being entirely silent in respect to whether the sale was unconditional, or in express, implied, or otherwise, recognition of or subordination to the mortgage to the Dothan Mule Company. The defendant traded the mule to the plaintiff, warranting the freedom of the animal from incumbrance or lien. The mortgagee, under the terms of the mortgage and after its law day, demanded the horse of the plaintiff, who, to avoid seizure and sale, paid the mortgage debt. There seems not to have been, nor is there now, any contention that the registration of the mortgage was not legally effected.
It is urged for appellant that the sale of the animal by Bolen was an act of disaffirmance of the contract of mortgage, thereby rendering the instrument a nullity, and hence relieving the animal, in the hands of plaintiff, free from the charge thereof, and, in consequence, obviating .the breach of warranty declared on in the
The complaint here, aside from other presently unimportant averments, alleges that the horse in question was incumbered with a mortgage to the Dothan Mule Company. The mortgage’s legal execution and existence was not denied, except as that resulted from an act imputed to the mortgagor, subsequent to the execution of that instrument. The mortgage was valid, is the effect of the contention, until the mortgagor, an infant, disaffirmed and avoided his only voidable, not void, act. The plaintiff, in effect, says: “I was compelled to pay an incumbrance, a mortgage, resting upon the animal, and you assured me there was none.” In reply the defendant would say: “There was such a mortgage, efficacious and valid, but the mortgagor exercised an election to avoid it; and hence I am excused from liability for breach of warranty on that account.” Unquestionably the complainant’s allegations, in that respect, were proven prima facie by the introduction of the mortgage duty executed. To avoid it the
The basis of the act operating, it is insisted, the avoidance of the mortgage, was the infancy of the mortgagor. 'Infancy is, it is never now doubted, matter of special plea. If Bolen had been haled into court to answer the Dothan Mule Company’s suit, either for the debt or to recover the horse, and Bolen had relied upon his minority to relieve him from the binding qualities of his contract, merely voidable, it is evident he must have pleaded specially his infancy. Can this defendant, asserting, in defense, that identical power given the infant, stand upon any higher ground, or enjoy a more liberal indulgence than the infant himself could have enjoyed? We think not.
Since the defensive matters urged in brief were not ■specially pleaded, and were not comprehended in the ■general issue pleaded, the result must be the affirmance of the judgment below upon the only two errors as.signed.
Affirmed.