Snellgrove v. Evans , 145 Ala. 600 ( 1906 )

ANDERSON, J.

This ivas' an action of detinue, brought by the plaintiff, a mortgagee, for two horses in the possession of the defendant, who claimed them under a liveryman’s lien, as given hv section 2774 of the Code of 1896,- as amended by Acts. 1898-99, p. 39. The plaintiff proved without dispute, by McCord, that he had in his hands for collection against Snow, the owner of the horses, a past-due account, which the said Snow admitted to be correct and gave a note and mortgage in settlement thereof, dated September the 19th and payable November 1,1903. The proof also showed that the horses were not in the stable or possession of the defendant at this time, and there was no evidence to charge the plaintiff with any notice of defendant’s lien. If the plaintiff had an existing debt, and the time of its'payment was definitely extended in consideration of the giving of the note and mortgage, and he had no notice of defendant’s lien, he would be a bona fide purchaser,-and his title would be protected as against the claim of the defendant. — Randolph v. Webb, 116 Ala. 135, 22 South. 550 ; Whitfield v. Riddle, 78 Ala. 99 ; Thames v. Remberts Adm'r., 63 Ala. 561 ; Cahalan v. Monroe, 56 Ala. 303.

The appellant contends that it was incumbent upon the plaintiff to prove a valuable consideration, and that he failed to do so. We are aware of the rule that, when the debt or demand of a creditor is prior in date of existence to a conveyance by the debtor, or to a conveyance, the consideration of which proceeds from him, the burden of proving a valuable consideration for the convey: anco, when the ceditor assails its validity, is cast upon the grantee, and. if the consideration of the conveyance is averred to be a debt of the grantor, the existence and validity of such debt must be proved. — Buchanan v. Buchanan, 72 Ala. 55 ; Hamilton’s Adm’r. v. Blackwell, 60 Ala. 545. “The rule of proof os to bona fide purchase is that the party pleading it must first make satisfactory proof of purchase and payment. This is affirmative defensive matter, in the nature of confession and avoidance, and the burden of proving it. rests on him who asserts it.’’ This done, he need go no further than prove he made such purchase and payment without notice. — Barton v. Barton, 75 Ala. 400. Neither will the mere recitals of the conveyance establish the consideration, which must he established by proof independent of said recital or declaration. The declaration or admission of Snow, the mortgagor, made to McCord when the mortgage was executed, was not sufficient to prove the consideration of the mortgage, and was entitled to no more weight than a similar recital in the note and mortgage. The plaintiff having a mortgage subsequent in point of time to defendant’s lien, and failing to show that his mortgage, was for a valuable consideration, the defendant’s lien, coupled with the possession of the property, was sufficient to defeat plaintiff’s recovery. — Gafford v. Stearns, 51 Ala. 434 ; Bryan v. Smith, 22 Ala. 534.

The gist of the action of detinue is the defendant’s wrongful possession and the plaintiff’s right to immediate possession, and evidence negativing either of these facts is competent under the general issue. — Foster v. Chamberlain, 41 Ala. 167 ; Carlisle v. Bank, 122 Ala. 446, 26 South. 115 ; Berlin Works v. Ala. Co., 112 Ala. 488, 20 South. 418. Besides, it clearly appears from the record that the defendant’s lien was proved without objection under the general issue, -which was an implied waiver of a special plea. — R. & D. R. R. v. Farmer, 97 Ala. 141, 12 South. 86.

Under the proof as disclosed by the record, .the defendant was entitled to the general charge, and the court erred in refusing the same, and in giving the affirmative charge for the plaintiff.

The judgment of the circuit court is reversed, and the cause remanded.

Reversed and remanded.

Weakley, O. J., and Tyson and Simpson, JJ., concur.