62 So. 549 | Ala. Ct. App. | 1913
Section 3394 of the Code, changing the rule declared in Fairbanks v. Eureka Co., 67 Ala. 109, makes contracts for the conditional sales of personal property void as to the condition against purchasers for a valuable consideration, mortgagees, and judgment creditors without notice, unless such contract is in
The doctrine of bona fide purchaser originated in equity jurisprudence, and in the construction of the meaning of that term Avhen employed in recording or registry statutes, as is here under consideration, we are relegated to that source for guidance, in the absence of a contrary intent apparent on the face of the statute. We find nothing on the face of this statute indicating an intent on the part of the Legislature to narrow or enlarge the meaning of the term beyond its usual significance, as used in that branch of the law.
There it has been held that, in order to constitute one a bona fide purchaser and entitle him to protection as such, it is essential: “ (1) That he should be the purchaser of the legal, as distinguished from an equitable, title to the property; (2) that he should have purchased the same in good faith; (3) that he should have parted with value as a consideration therefor by paying money or other thing of value, or by assuming a liability or incurring an injury; (4) that he should have had-no notice, and should have known no fact
The burden of proof as to the first three propositions rests upon the person claiming the protection, and as to the fourth upon him wlm seeks to defeat the claim. — Barton v. Barton, 75 Ala. 400.
There is nothing in the evidence tending to show that the defendant had any notice either actual or constructive, of plaintiff’s retention of title, or knew any fact sufficient to put him on inquiry until the demand was made for the possession of the piano, as stated, which was some 30 days or more after the alleged agreement between defendant and Vaughn. Hence we are to test out the question as to whether the defendant is a bona fide purchaser by the first three requisites last stated.
The first of the three is that he should have purchased “the legal, as distinguished from an equitable, title.” This does not mean that it is necessary that he should have become an actual purchaser in the ordinary acceptation of the term, since the doctrine has frequently and uniformly been so extended as to include mere mortgagees; nor does it mean, in requiring that he should have acquired “the legal title,” to use these latter words in their technical sense. As there employed, these words import merely a legal interest, lien, or estate in the property, such as cognizable in a court of law, as contradistinguished from such interest or right in the property as is only recognized in a court of equity. The agreement under which Vaughn left the property with the defendant amounted to nothing more nor léss than a common-law pledge, which is generally
It is not insisted by appellant that there was any actual mala fides on the part of defendant in receiving the pledge; hence we pass over a consideration of the second, and come lastly to the third, requisite, which involves the question as to whether or not the defendant at the time of receiving the pledge parted with such a consideration as entitles him to protection as an innocent purchaser. The pledge, it will be observed, was to secure a pre-existing debt, which alone would not be adequate in law to secure the protection here claimed against the real owner of the property, since, in order to receive such protection, the pledgee must at the time have parted with a valuable consideration, either in monéy or other property, or have assumed some liability or sustained some injury. — Craft, v. Russell, supra; Sweeney v. Bixler, 69 Ala. 540; First Nat. Bank v. Johnston, 97 Ala. 662, 11 South. 690. However, defendant contends that he not only accepted the pledge as security for his pre-existing debt, but in addition he accepted it under an agreement with Vaughn to extend the time of. payment of that debt, and that thereby he changed his position for the worse in that he is prevented from proceeding even on the original debt until the arrival of the time limit of the agreed forbearance. Our Supreme Court have repeatedly held that where a mortgagee, who receives from his debtor a mortgage to secure an antecedent debt, without notice of previous liens on the property, is entitled to protection as an innocent purchaser, where, as a present consideration for the security given, he agrees to an extension of time for the payment of the debt. — Alston v. Marshall, 112
But, when he obtains the security in consideration of an agreement to extend the time of payment of the original debt, he is legally bound’ not to proceed in the collection of that debt until the extension agreed upon has expired; hence suffers this detriment without consequent advantage, if another is permitted to take from him the security he has received for the agreement.- — 7 Cyc. 934. It is not required that such agreement be in writing or that a new obligation for the debt be given; a parol agreement for the extension is sufficient. - — Ferguson v. Bill, 3 Stew. 485, 21 Am. Dec. 641; 7 Cyc. 898.
Here the undisputed evidence shows that the defendant, as a consideration for the pledge, contemporaneously verbally agreed to extend the time of the payment
The cases of Griel v. Solomon, 82 Ala. 91, 2 South. 322, 60 Am. Rep. 733, and Kraus v. Torry, 146 Ala. 548, 40 South. 956, cited in briefs, holding that the promise of a bankrupt, after his discharge, to pay his creditor when he was able to do so was a conditional promise and could not be enforced except upon proof by the creditor that the bankrupt had become able to pay, have no application to the facts of the present case, where the debt held by defendant against Vaughn is absolute and not conditional, as there. Such words, when used under the circumstances here confronting us, mean that the debtor will pay that obligation within a “reasonable time” (Crass v. Scruggs, supra), and certainly cannot be construed as intending to mean that the debt was to terminate and become extinct, and was never to be revived unless and only in the event and upon the condition that the debtor became able at some
In Tiedeman on Commercial Paper, § 175,. we find this language: “Another common kind of consideration for the support of commercial paper, and of obligations issuing out of such paper, is an agreement to forbear or extend the time of payment. Whether an agreement to forbear for an indefinite period, as for ‘a reasonable time,’ is a sufficient consideration has been differently decided by the courts, although the weight of authority is in favor of its being sufficient. Our own courts seem never to have had the exact question under considera
A creditor who, for a present consideration, has agreed to extend the time of payment of a debt for “a reasonable time” can no more maintain a suit- against the debtor to enforce the collection of such debt before the expiration of such time than he could so proceed, in 30 days, against a debtor to whom he had previously, upon such consideration, agreed to extend the debt for 60 days. In each case it is clear that the debtor could plead in defense the agreement and abate the suit until the full time had expired. — Ferguson v. Hill, 3 Stew. 485, 21 Am. Dec. 641; Glasscock v. Glasscock, 66 Mo. 630. If, then, in each case the creditor sustains the same detriment or injury as the result of the agreement, why should he not be equally protected in the case as in the other, and be permitted to retain that which he has received as a consideration for such agreement? We are unable to discover any difference in principle between the two cases. Of course, if a creditor upon
We are therefore of opinion that tbe lower court did not err in giving tbe general affirmative charge for defendant. Tbe plaintiff, however, as owner of tbe property, after be redelivers it to defendant as required by tbe replevy bond, would have tbe same right to redeem it that Vaughn would have, which is at any time before a Bale of it under tbe pledge by paying tbe debt and interest thereon to defendant. — National Safe Dep. Co. v. Gray, 12 App. D. C. 276.
In dealing with tbe case, we have not, of course, considered tbe “newly discovered evidence” for pláintiff set out in and as a predicate for bis motion for a new trial, which evidence, however, appellant’s counsel, in bis brief here, treats as though it were evidence introduced on tbe main trial. It does not so appear, and is consequently to be ignored in testing tbe correctness of tbe action of tbe court in granting tbe affirmative charge. Tbe motion for tbe new trial was properly overruled, as the alleged newly discovered evidence, upon which it was based, could and would by proper diligence have been discovered and introduced on tbe original trial.
Tbe only other error assigned is tbe action, of tbe court in striking tbe addition to plaintiff’s original complaint, offered by way of amendment. The original complaint is in detinue, following tbe Code form, and
The judgment fails to assess the alternate value of the property as required by section 3781 of the Code. This failure does no render the judgment void (Hines v. Tribble, 4 Ala. App. 238, 57 South. 265, citing cases), but is a mere irregularity, and, not being assigned as error, it will not reverse the judgment. — Clem v. Wise, 133 Ala. 409, 31 South. 986. Besides, we do not see how the failure to assess such value could be of injury to appellant, who was plaintiff below, and is in possession of the property under a replevy bond, which can be fully discharged by delivering the property in pursuance of the judgment and as required by law. The defendant in such a case is the only party that could probably be injured by the failure to assess the alternate value of the property. However, if the error had been assigned by appellant, it would have reversed the case under the authority of Jernigan v. Willoughby, 159 Ala. 650, 48 South. 812.
The judgment of the lower court is affirmed.
Affirmed.