Tompkins v. Henderson & Co.

83 Ala. 391 | Ala. | 1887

STONE, C. J.

The mule described in the mortgage is a “black mare mule.” The witnesses describe the mule sued for as a “dark mouse-colored mare mule,” and as a “mouse-colored mule.” The complaint, as amended, claims a dark mouse-colored-mare mule. There is some testimony to show actual notice of Henderson & Co.’s claim, given before the sale — that this was the mule actually mortgaged— and that the defendant in execution had no other mules than the two mentioned in the mortgage as “black mare mules.” The.description in the mortgage is not so entirely false or misleading, as that the mortgage and other identifying evidence should have been ruled out. It was properly a question for the jury to determine whether the mule sued for was the mule conveyed. The charge of the court fairly submitted that inquiry to the jury. — Jones Chat. Mort. § 55; Smith v. McLean, 24 Iowa, 322; Rowley v. Bartholomew, 39 Iowa, 375.

Henderson & Co.’s mortgage was executed in January, 1885, and was properly filed for record the same month. It recites an indebtedness of one hundred and fifty dollars, which it purports to secure. Garner, Parker & Co. recovered a judgment against Isaiah Boles, the mortgagor, in March, 1886. There is no evidence of his indebtedness to them before that time. Under an execution ■ issued on this judgment, the mule was sold, and Tompkins became the purchaser, taking the mule into his possession. There being no evidence that the debt under which he purchased had any existence, except as shown by the judgment, Henderson & Co. were not required to show any debt, to uphold their mortgage. Boles’ admission of the debt to them, being older than the judgment under which Tompkins claimed, was sufficient to support their action against him, or against any one claiming under or through Boles, by title acquired at *394a latter date. — Gordon v. McIlwain, 82 Ala. 247; Bolling v. Jones, 67 Ala. 508.

Tbe last charge given at the instance o£ the plaintiffs below must work a reversal of this case. Its language is: “If the description of the property was sufficient to put parties on inquiry, then they will he held to have had notice that the mule was included in the mortgage. ’ ’ This omits a material element of imputed notice. To come up to the rule, it is not enough that the facts, of which the party sought to be charged has notice, shall be sufficient to put him on inquiry. It requires that the finding shall go further, and produce reasonable conviction that such inquiry, if followed up, would have led to a knowledge of the facts sought to be established; in this case, the identity of the mule sued for, with the one conveyed in the mortgage. — Boggs v. Price, 64 Ala. 414; M. & M. Railway Co. v. Felrath, 67 Ala. 189; Hodges v. Coleman, 76 Ala. 103, 113, et seq.

"What we have said above is applicable to cases of indeterminate testimony, the sufficiency of which must be passed on by the jury. There are cases of notice, presumed from record or documentary testimony, and some other classes of cases, which rest on different principles. — Dudley v. Witter, 46 Ala. 664.

Beversed and remanded.

midpage