Dumas v. Peoples' Bank , 146 Ala. 226 ( 1906 )

DOWDELL, J.

This is an action of detinue, commenced by the plaintiff, appellant here, against Sigmund Haas for the recovery of two bales of cotton. The appellee, the People’s Bank, Avas substituted as a defendant under §§ 2633, 2634, of the code of 1896. The plaintiff, Jerry Dumas, executed to Bpoavu Bros., his promissory note, of AAdiich the folloAving is a copy: Mt. Sterling, Ala., March 9, 1.903. On December 5, after date, I promise to pay BroAvn Bros., or order, one hundred and sixty-three and 81-1.00 dollars, Avith cost of collection and attorney’s fees.' Value received. Payable at their office, Mobile, Alabama. To secure the payment of this debt, the right of exemption existing under the. Iuavs of the state of Alabama or any other state is hereby expressly waived.” To secure the payment of said note at. its maturity, the. plaintiff executed to Brown Bros, a mortgage which embraced the property in question. The note Avas indorsed by Brown Bros, in blank, and by them negotiated to the People’s Bank before its maturity. The mortgage Avas not assigned in writing, but Avas by Brown Bros, delivered to the People’s Bank at the time the note was negotiated and indorsed to the latter.

The defense of the People’s Bank, the substituted defendant, is based upon the above note and mortgage. The note possessed all the elements of commercial paper under the statute. — Code 1896, § 869; First National Bank of Montgomery v. Slaughter, 98 Ala. 602, 14 South. 545, 39 Am. St. Rep. 88; Slaughter v. First Nat. Bank, 109 Ala. 158, 19 South. 430; Rudolph v. Brewer, 96 Ala. 189, 11 South. 314. The mortgage which was given to secure the payment of the note, did not impair its character as commercial paper. — Commercial Bank of Selma v. Crenshaw, 103 Ala. 497, 15 South. 741.

The assignment of the note, secured by the mortgage, was an equitable assignment of the mortgage, and the assignee, the People’s Bank, had the right to use the name of the holder of the legal title to enforce the mortgage at law. — Welch v. Phillips, 54 Ala. 309, 25 Am. Rep. 679; Graham & Regers v. Newman, 21 Ala. 497., This being true, the appellee, having obtained possession of the cotton in question from the holder of the legal title under the mortgage, in order to defeat the plaintiff’s right of recovery, could set up as a defense the outstanding superior title with which it connected itself. — Behr v. Gerson, 95 Ala, 438, 11 South. 115.

We find no reversible error in the record, and the judgment appealed from will he affirmed.

Affirmed.

Haralson, Anderson and Denson, JJ., concur.