Speakman v. Vest , 152 Ala. 623 ( 1907 )

DOWDELL, J.

This is an action of trespass for the taking of a horse. The plaintiff claimed the horse by gift from his father. The evidence was without dispute that the father owned the horse and was in possession of him when he gave the mortgage. The gift as a matter of course was subject to the mortgage as long as the same remained unsatisfied, whether in the hands of the mortgagee or his transferee. The transfer of the mortgage carried all of the rights to the transferee. The fact that the plaintiff was in possession of the horse under the gift from his father, the mortgagor, at the time of the transfer of the mortgage, did not avoid the transfer.

There was evidence tending to show that the mortgage was unsatisfied, and also evidence tending to show that the mortgage debt had been paid. In this respect the evidence on the part of the plaintiff and defendant was in conflict, and it became a question for the jury.

Written charge No. 8, given at the request of the defendant, stated what the mortgage provided as to the indebtedness secured, and if, under the evidence, this charge had any misleading tendency, it could have been counteracted by an explanatory charge at plaintiff’s request. There was no error in the giving of this charge.

Charges 2, 3, and 4, requested by the plaintiff, were properly refused. These charges were in effect the general affirmative charge to find for the plaintiff. Charge 24, requested by the plaintiff, was palpably erroneous. It does not correctly state the law. What we have already said above as to the gift, without more, is sufficient to condemn this charge.

The mortgagor testified to having paid off the mortgage, and it was, therefore, competent to prove his admissions to the contrary. This disposes of all of the as-signm exits of error insisted on, and finding that no error has been committed on the trial, the judgment is-afimned.

Affirmed.

Tyson, C. J., and Simpson and Denson, JJ., concur.