Argo v. Sylacauga Mercantile Co. , 12 Ala. App. 442 ( 1915 )

BROWN, J.

The recordation of the mortgage executed by Hazel to appellee in the county of the mortgagor’s residence, and in which the property was situated at the time of its execution, operated as constructive notice to all persons of its contents and of the lien or title of the appellee thereunder to the property covered by the mortgage, while it remained in Talladega county, and, if property covered by the mortgage ivas removed from Talladega into Coosa county, for three months after its removal into Coosa county. — Code 1907, §§ 3373, 3376; Chadwick v. Russell, 117 Ala. 290, 23 South. 524; Williams v. Vining, 150 Ala. 482, 43 South. 744; Stickney v. Dunaway & Lambert, 169 Ala. 466, 53 South. 770.

A purchaser of the property within the three-month period after its removal would therefore take subject to the rights of the mortgagee, the Sylacauga Mercantile Company.—Malone v. Bedsole, 93 Ala. 41, 9 South. 520; Pollak v. Davidson, 87 Ala. 551, 6 South. 312; Wilkinson v. King, 81 Ala. 156, 8 South. 189; Pulaski Mule Co. v. Haley & Koonce, 187 Ala. 533, 65 South. 783.

Under these principles, John Sprayberry, who the fourth plea alleges claimed under the defendant, in so far as that plea shows, may have become a purchaser of the property from defendant after the expiration of three months from the removal of the property into Coosa county, the mortgage under which plaintiff claims having never been recorded in that county, and therefore protected as an innocent purchaser without notice. “The averments of a plea must be certain, precise, and such as are necessary to avoid all ambiguity of meaning and exclude all intendments. * * * If we allow the averment to be true, but at the same time a case may be supposed consistent with it which would render the averment inoperative as a full defense, such a case will be presumed or intended, unless excluded by particular averments.”—Scharfenburg v. Town of New Decatur, 155 Ala. 655, 47 South. 95. The fourth plea did not exclude the idea that John Sprayberry was an innocent purchaser as against appelle’s rights on the theory above stated, and it was subject to the demurrer which the court correctly sustained to it.

If, as contended by appellant, the transaction between appellant and Ed Sprayberry was a mere loan of money to Sprayberry to enable Mm to purchase the mule from Grimes, and the appellant had no connection with the purchase of the mule other than this, and acquired no interest or title in the mule or control over it, he would not be liable as for a conversion of the mule, and the plaintiff would not be entitled to recover. On the other hand,, if the appellant through Sprayberry as his agent purchased the mule from Grimes, or by the transaction between Ed Sprayberry and Grimes the appellaut acquired an interest in the mule by paying to Grimes the purchase money therefor, as some of the evidence tended to show, he would be guilty of a conversion and liabile in an action of trover, provided plaintiff’s mortgage covered the mule in controversy. “It is not essential to a conversion which will support the action of trover that the defendant should have the complete manucaption of the property. An intermeddling with, or dominion over the property of another, whether by the defendant alone, or in connection with others, which is subversive of the dominion of the true owner, and in denial of his rights, is a conversion.”—Bolling v. Kirby & Bro., 90 Ala. 221, 7 South. 914, 24 Am. St. Rep. 789; Boutwell v. Parker, 124 Ala. 343, 27 South. 309; Cartlidge v. Sloan, 124 Ala. 602, 26 South. 918. Under the evidence in the case, it Avas a question for the jury whether the transaction between Ed Sprayberry and the appellant was a mere loan or whether appellant was in some way interested in the purchase of the mule, and for this reason the court committed reversible error in giving the affirmative charge in favor of the plaintiff.—Pantaze v. West, 7 Ala. App. 599, 61 South. 42.

It was also for the jury to determine whether or not the mule in controversy was the same as that described in the mortgage.—Stickney v. Dunaway & Lambert, 169 Ala. 466, 53 South. 770; Williams v. Vining, 150 Ala. 482, 43 South. 744; Smith v. Fields, 79 Ala. 336. On the authority of the two last-cited cases, the mortgage was properly admitted in evidence, in connection with the other evidence in the case.

The defendant had a right to show, if he could, that the mortgage debt to the plaintiff had been satisfied. The satisfaction of the debt would have effect to destroy the plaintiff’s title under the morgage. — Code 1907, § 4899; Karter v. Fields, 130 Ala. 430, 30 South. 504. And the court erred in sustaining the plaintiff’s objection to the question asked the witness Mann as to Avhether or not there was any balance due on the mortgage.

For the errors above pointed out, the judgment of the circuit court must be reversed and the cause remanded.

Reversed and remanded.