Cragin & Knobles v. Dickey , 113 Ala. 310 ( 1896 )

COLEMAN, J.

The appellants filed this bill to foreclose a mortgage given by George W. Dickey in his lifetime upon' his cattle and sheep. It appears from aver-ments in the bill that complainants instituted detinue proceedings to recover possession of the property. The question of res adjudicata, is not raised by respondents, either by plea or answer, and construing the pleadings most strongly against the pleader, the averments on their face are not sufficient to justify the court ex mero motu to conclude that the detinue suit has been finally concluded, or the rights of complainants adversely adjudicated. We are wholly unable to perceive how the reference in the bill to the detinue proceedings were to avail complainants, nor can we perceive how complainants could expect to derive any aid, by injecting into their bill, the agreement made with E. F. Dickey, wife of the mortgagor. The one question presented for consideration by tlie pleadings is, whether the description of the property contained in the mortgage is sufficiently accurate and definite to authorize the foreclosure and sale of certain sheep admitted to belong to the mortgagor, but which do not precisely correspond with the description in the mortgage. The property is described in the mortgage as “Three hundred (300) head of sheep, marked with a swallow fork and over-bit in one ear and two splits in the other, brand ‘D.’ Said sheep are in Washington cbunty, said State.” The bill and facts show that only about one dozen of the sheep were branded “D the ear marks, however, of the sheep corresponded with the description contained in the mortgage. The bill avers and the facts show that when the mortgage was executed, George W. Dickey, the mortgagor, owned three hundred sheep in Washington county, and that he owned no more in that county or elsewhere, and that these were the sheep intended to,be conveyed and were conveyed by the mortgage, and his mark was known throughout the county. After reading the bill and answers and the evidence in the case, there is no room to doubt the conveyance of the sheep by the mortgage, and the fact that the mortgage described them all as being branded, when only a part were branded, does not invalidate it. The averments of the bill are full and the proof is ample to identify the property. The contention here is between mortgagor and mortgagee, and not between mortgagee and other creditors or purchasers of the mortgagor.-Smith v. Fields, 79 Ala. 335; Chambers v. Ringstaff, 69 Ala. 140; Ellis v. Martin, 60 Ala. 394; Connally v. Spragins, 66 Ala. 258; Hurt v. Redd, 64 Ala. 85; Johnson v. Grisard, 3 L. R. A. 795, notes; Jones on Chattel Mortgages, § 63, note 4, and authorities.

Whether or not there will be found a balance due on the mortgage, and how much, if any, cannot be definitely ascertained without the execution of a reference. Upon the pleadings and evidence as it now appears, complainants were entitled to relief and a reference.

The decree of the chancery court is reversed, and a decree will be here rendered, granting relief to complainants, and an order to the register to hold a reference and state an account, to be reported to the next term of the chancery court for said district. The evidence as to payments is not full, and in executing the reference, the register will receive any legal evidence that may be offered by either party.

Reversed and rendered, and remanded.