Hill v. Nelms , 86 Ala. 442 ( 1888 )

SOMERVILLE, J.

The action is one of detinue for certain specific property, the title of the plaintiffs resting on a' mortgage purporting to be executed by the appellees, who were defendants in the lower court. There is evidence tending to show that a material alteration was made in the amount of the mortgage debt, by changing it from nine hundred to one thousand dollars, and that the name of E. G. Nelms was added as one of the mortgagors, after the execution of the paper, and without the consent or knowledge of C. W. Nelms, also a mortgagor. The second plea of the defendant E. G. Nelms substantially averred these facts, and the court held it sufficient on demurrer.

1. It was not necessary for the plea to aver, in express words, that these alterations were made after delivery of the mortgage. The averment, that it was done after the instrument was executed, was sufficient. This implies that it was after delivery. The execution of a conveyance ordinarily includes its signing, sealing and delivery, or the doing of every formal thing necessary to complete or carry it into effect. — 1 Rapalje’s Law Dict. p. 478, “Executed,”

2. Nor was it necessary to aver in the plea that the alteration was made by the plaintiffs, or with their knowledge or consent. It is sufficient to state that the change was made after the execution of the paper, and without the knowledge or consent of the defendants; which imports that it was done after delivery, and, consequently, while in the custody and possession of the plaintiffs, who were the grantees in the instrument. The alteration appeared on the face of the paper, and was obviously so material and beneficial to the mortgagees as to be suspicious in its nature. This fact, according to the better rule, cast on the plaintiffs, as holders, the burden of removing the suspicion, by showing that it was made by a stranger, Avithout their knowledge or leave, or to otherwise satisfactorily explain the alteration. If made before the completion of the instrument, or with the consent of the party to be charged under it, this would be a sufficient explanation. The force of the plea is to deny, prima facie, the right of the plaintiffs to claim any legal right under the altered mortgage, without first so explaining the suspicious fact of alteration as to rebut the implication of its having been fraudulently made.- — Stephens’ Dig. Law Ev. (Reynolds), pp. 119-20, Art. 89; 1 Greenl. Ev. (14 Ed.), § 564, note 1; 3 Randolph Com. Paper, § 1784; 1 Amer. & Eng. Encyc. Law, pp. 512-13; Barclift v. Treece, 77 Ala. 528.

The demurrer to this plea was properly overruled.

3. Where an infant, during his minority, has made a deed or mortgage, his mere failure to disaffirm the conveyanee on coming of age, without some positive and clear act of affirmation, will not amount tó a ratification of the conveyance. “The reason is, that by silent acquiescence he occasions no injury to other persons, and secures no benefit or new right to himself. There is nothing to urge him, as a duty towards others, to act speedily. Language, appropriate in other cases, requiring him to act within a reasonable time, would become inappropriate. He may,' therefore, after years of acqrdescence, by an entry, or by a conveyance of the estate to another person, disaffirm and avoid the conveyance made during his infancy.” — 2 Greenl. Ev. (14th Ed), § 366, note on p. 359. In such case, it seems to be settled, that no passive acquiescence, unconnected with affirmative acts, will effect a ratification, short of the statutory period of limitations, where there is room for the operation of the statute. Toby v. Wood, 25 Amer. Hep., note, and cases cited on p. 31; Eureka Co. v. Edwards, 71 Ala. 248-; Voltz v. Voltz, 75 Ala. 555; 3 Brick Dig., p. 563, §§ 10 — 12; Philips v. Green, 13 Amer. Dec. 124, note, p. 131; Flexner v. Dickerson, 72 Ala. 318.

The demurrer to the plaintiffs’ second replication to E. G. Nelms’ pleas was based on the idea, that mere acquiescence, or a failure to disaffirm the plaintiffs’ mortgage by some positive act of repudiation, was a legal ratification of it. This was an erroneous view of the law, and the court properly overruled this demurrer.

4. The court' erred in construing the mortgage as not including any debt for advances or supplies created after October 1st, 1880 — the law-day of the instrument. It expressly provides that, if the mortgagees “shall advance or furnish 0. W. Nelms any further supplies [additional to .those for which the note was given], this instrument [or mortgage] shall stand as security for the same as fully as if included in said note.” The note and mortgage were executed in April of the year 1880, and the supplies gotten by the mortgagors were obtained for the declared purpose of making a crop. Whatever supplies or advances, therefore, which were shown to have been obtained to aid in making the crop of the current year — that is, in planting, cultivating and gathering it — must be construed to come within the terms of the mortgage. — Collier v. Faulk, 69 Ala. 58; Lovelace v. Webb, 62 Ala. 271.

5. Any verbal agreement, made between the holders of the mortgage and either of the defendants, that the mortgage should cover or include other debts, created after the year 1880, would be good as a verbal mortgage on the property of that one of the mortgagors, who entered into such an agreement. Each mortgagor had a right severally to bind his own property, by enlarging the legal operation of the security. Section 1731 of the present Code, prohibiting verbal mortgages, was not then in force, and can have no bearing on this case — Code, 1886, § 1731; Acts 1884-85, p. 93. If the contract of mortgage, however, was a several, and not a joint one, on the part of the defendants, a joint action could not be maintained on such several contracts, the question of misjoinder being properly presented.

6. The plaintiffs were estopped from showing that the wagon sued for had not been seized by the sheriff, or had not gone into their possession, under the forthcoming bond executed by them. The bond recites its seizure by the sheriff under the writ of detinue in the case, and is conditioned on the delivery of the wagon and'other property by the obligors to the defendants, on the failure of the plaintiffs in the suit. The necessary implication is, that the sheriff discharged his duty by taking the property into his possession, and delivering it to the obligors in the bond.

We need not pass upon the sufficiency of the verdict, as, upon another trial, the irregularity pointed out can be corrected, so as to conform to the requirements of the statute. Code, 1886, § 2719.

Reversed and remanded.