Clem v. Wise , 133 Ala. 403 ( 1901 )

SHABPE, J.

If it be conceded that the writing signed by the directors of the mercantile corporation was, as is contended for appellant, “no more than a minute of what was done at a directors’ meeting,” and that it did not operate in itself to transfer the mortgage through which the plaintiff claimed the property sued for, yet as a minute of such meeting it was, in connection with the by-law vesting the power of the corporation in the directors and the plaintiff’s oral testimony, admissible as evidence of a sale and as authority in plaintiff as president- to make the transfer in behalf of the corporation.

The bill of exceptions shows plaintiff testified without objection “that he as president of said company delivered and transferred t-o himself individually all of the assets of said corporation and became the absolute owner thereof, and as such president delivered and transferred to himself as an individual the said mortgage above referred to; that he did not write out any transfer of said mortgage on the back thereof until after the suit was brought.” This testimony, together with the writings introduced in evidence was sufficient to carry to the jury the question of whether the plaintiff was the legal owner of the mortgage, because from it they could have inferred the execution of such transfer, other than by indorsement, as may have been necessary to create his ownership. For that purpose a separate writing could have been made as effectual as a writing on the mortgage itself. The case of Gafford v. Lofton, 94 Ala. 333, and other authorities cited by appellant as opposed to this proposition show that a chattel mortgage may be legally assigned by an indorsement thereon, but they do not negative the validity of separate assignments.

Under a transfer which is not merely of the debt but which is appropriate to pass title to the security, the transferee may maintain a suit at law for the mortgaged property. — Gafford v. Lofton, supra; Tison v. People’s etc,. Ass’n., 57 Ala. 323; Hodges v. Wilkinson, 17 L. R. A. (N. C.), 545; Mayer v. Soulier, 48 Mich. 411; Barbour v. White, 37 Ill. 165; Langdon v. Buel, 9 Wend. 80.

If the property was of value greater than one hundred dollars when the suit was pending in the justice’s court that fact might have been there pleaded to the jurisdiction, but objection to the jurisdiction not having been made in that court, was not available as presented for the first time on the motion for new trial in the circuit court. — L. & N. R. R. Co. v. Barker, 96 Ala. 435; Western R. Co. v. Lazarus, 88 Ala. 453; Glaze v. Blake, 56 Ala. 379; Burns v. Henry, 67 Ala. 209.

The judgment is irregular in that it is not rendered against the defendant alone for the property or its value in the alternative, (Code, § 1476) ; but this irregularity is not assigned as error.

The assignments of error not insisted on in briefs are regarded as waived.

Affirmed.