Benton v. Danley

134 So. 32, 24 Ala. App. 260, 1931 Ala. App. LEXIS 261

• Court: Alabama Court of Appeals
• Decided: April 14, 1931
• Docket: 4 Div. 620.
• Status: Published

Opinion

RICE, J.

Appellant brought this suit in detinue to recover the possession of a certain Ford car, ■and the court below gave the general affirmative charge in favor of the appellee.

AVe are of the opinion the court was in error in the action mentioned.

The issues wdre simple, and we gather the impression that the court erroneously concluded that appellant could not recover, because, since the execution, and his possession, of the .two mortgages from appellee which he held, and before the institution of the suit, appellant had been adjudicated a bankrupt, and received his discharge, etc. But this did not necessarily preclude him. Watson v. Motley, 201 Ala. 25, 75 So. 147.

If 'the second mortgage offered in evidence clid not afford a basis of recovery, because not owned by appellant at the time of the institution of the suit, sitill he could rely upon the first (in time of execution) of the two mortgages.

Of course, if the second of said mortgages was intended to, and did, supersede and take the place of the first of same, and said second mortgage did not belong to appellant, etc., he could not recover. But there are some questions involved, as the record here stands, which ought to be solved by the jury.

The judgment is reversed, and the cause remanded.

Reversed and remanded.