Holman v. Ketchum , 153 Ala. 360 ( 1907 )

McCLELLAN, J.

— The defendant’s motion for a new-trial upon the ground that the verdict Avas contrary to the laAV and evidence, or either, Avas overruled, and from that action he appeals.

The plaintiff’s case is stated in íavo counts, trespass and trover. Admitting that he took possession, without force, of the two mules in question, the defendant sought to justify his course under a mortgage to him by plaintiff. This instrument purports to have been executed on November 3, 1903, and the note AAdiich it w-as gi\ren to secure matured on September 1, 1904. The taking of the animals was on February 22, 1904. The mortgage contained the provision under which defendant assumed dominion of the mules, viz: “All or any of Avhich property the said J. D. Holman may, after or before the maturity hereof and for the payment thereof, seize and sell as they may deem best, wraiving all formalities.” To maintain trover the plaintiff must have, at the time of the alleged conversion, the title, general or special, to the property and possession or the immediate right of possession; and to support trespass for the taking of chattels he must have, at the time of the act, the actual possession or the right of immediate possession of the property. — Johnson v. Wilson, 137 Ala. 468, 34 South. 392, 97 Am. St. Rep. 52. A mortgage, at lawq effects to invest the mortgagee w-ith the mortgagor’s title to the property described, and this, unless the parties otherwise stipulate, draAA-s to it the right of possession thereof. Before foreclosure there is in the mortgagor only the equity of redemption, Avliich is not cognizable in a court of law. — Marks v. Robinson, 82 Ala. 69, 2 South. 292; Stephens v. Head, 138 Ala. 455, 35 South. 565. It is within the competency of the parties to order the possession, pending the maturity of the indebtedness, as they see fit; and from the quoted provision of this mortgage it is clear that the right and power to terminate the contemplated possession of the mortgagor was reserved by the mortgagee, the holder of the legal title, to be asserted whenever he desired. Assuming the validity of the mortgage, the plaintiff was Avithout the title to the property, and his possession and right to the possession of the mules Aims laAvfullv terminated by the authorized act of the mortgagee in seizing them. For so doing he committed no Avrong against the plaintiff, and, if the mortgage is valid, he must have failed in this action.' See Jones on Chiattel Mortgages, 435. Under these circumstances it is evident that the crucial point in the case Avas the issue of fact Avhether, as plaintiff contended, the execution of the mortgage by the plaintiff was induced by the fraudulent representation of the defendant that the paper ivas a note, and not a mortgage, which latter plaintiff had refused to execute.— Bank of Guntersville v. Webb, 108 Ala. 132, 19 South. 14.

The verdict was general, and, if Avarranted by the evidence, may be supported by an affirmative finding upon the issue just stated; for, if the mortgage was thus fraudulently procured to be executed, it Avas invalid, and afforded no protection to defendant in taking or appropriating the mules. The several mortgages assigned to defendant by Stokes after the taking on February 22, 1904, could, of course, serve no purpose to justify or acquit the defendant of the wrong charged. We have carefully considered the testimony bearing upon this issue of fact; and while the weight of it appears, from the record we alone have, to be Avith the defendant, yet the preponderance is not so great as to overcome the presumption of the correctness of the jury’s finding, favored as they were Avith a vieAV of the witnesses in giving their testimony, and to convince us that the conclusion reached by the jury is wrong and .unjust. The judgment overruling the motion is affirmed.

Affirmed.

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