Houston Nat. Bank v. J. T. Edmonson & Co. , 200 Ala. 120 ( 1916 )

The execution of the mortgage transfer by Yarbrough to the plaintiffs was sufficiently shown, in accordance with the requirements of Ballow v. Collins, 139 Ala. 543, 36 So. 712, and Swindall v. Ford, 184 Ala. 137, 63 So. 651.

It may be, as strongly intimated in Ballow v. Collins, supra, that an illiterate grantor who can neither read nor write is inherently incompetent as a witness to identify and prove the signature of a witness who has attested such grantor's signature made by mark. If so the objection should be made to the competency of the witness, and an objection to the admission of the document for illegality or immateriality, or because its execution is not proved, does not reach the trouble.

When a claimant intervenes in a detinue suit under Code, § 3792, the issue is upon the legal title and right to possession of the chattel sued for. Keyser v. Maas Swartz,111 Ala. 390, 21 So. 346. See, also, Howard v. Deens,143 Ala. 423, 39 So. 346, as to the analogous provision found in Code, § 6051. In this case plaintiff's mortgage, executed after January 1, 1914, conveyed to them the legal title and, after the last day, the right to the possession of the cotton sued for. Code, § 4894; Keyser v. Maas Swartz, supra. On the other hand, claimant's mortgage, executed prior to January 1, 1914 — conceding that it covered this particular cotton — conveyed to it only an equitable title. Patapsco Guano Co. v. Ballard,107 Ala. 710, 716, 19 So. 777, 54 Am. St. Rep. 131; Mayer v. Taylor, 69 Ala. 403, 44 Am. Rep. 522.

It follows that, regardless of whether the cotton was raised on the one place, or the other, of the mortgagor, plaintiff's legal title was superior to claimant's equitable title, and plaintiff was, as matter of law, entitled to recover in this suit. We need not, therefore, consider the other rulings of the trial court which are assigned for error.

With respect to claimant's rights and remedies in the premises, it is sufficient to say that:

"If the property in such a mortgage when it comes into existence is delivered to the mortgagee, his legal title to it becomes complete, and he may maintain trespass, trover or detinue against any one who should disturb his possession; or if, before it is delivered to him, the mortgagor or his assignee, with knowledge of the mortgage lien, should receive and dispose of it, either or both would be liable in case to the mortgagee for the value of the property disposed of." Patapsco Guano Co. v. Ballard, 107 Ala. 710, 717, 19 So. 777 (54 Am. St. Rep. 131), and cases therein cited.

And of course a court of equity will protect and enforce his lien as against any purchaser with notice. Columbus, etc., Co. v. Renfro, 71 Ala. 577, 579; Mayer v. Taylor, 69 Ala. 403, 44 Am. Rep. 522.

The judgment will be affirmed.

Affirmed.

McCLELLAN, MAYFIELD, and THOMAS, JJ., concur.

On Rehearing.