Brock v. Culpepper

Supreme Court of Alabama

Brock v. Culpepper

116 So. 126, 217 Ala. 289, 1928 Ala. LEXIS 458

CourtSupreme Court of Alabama

DecidedMarch 22, 1928

Docket7 Div. 799.

StatusPublished

Cited by1 cases

This text of 116 So. 126 (Brock v. Culpepper) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brock v. Culpepper, 116 So. 126, 217 Ala. 289, 1928 Ala. LEXIS 458 (Ala. 1928).

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Opinion

BOULDIN, J.

The mortgagee of cotton may maintain trover against a purchaser from the mortgagor without the mortgagee’s consent in two events: First, when the purchase and taking into possession is after the law day of the mortgage or the mortgagee is otherwise entitled to the possession under the terms of his mortgage. Second: if purchased before the law day and held or disposed of after the law day. Under our statute it is unlawful to sell mortgaged personalty without the mortgagee’s consent. The purchaser becomes a tort-feasor. Although no action of trover may lie at the time, if the wrongful dominion thus acquired is retained to the exclusion of the possessory right of the mortgagee after the law day, this is a conversion as of that date, which will support trover.

Under a count in a case for the destruction of the mortgage lien, the evidence must afford ground for reasonable inference that the cotton has been sold, removed, or otherwise so disposed of as to obstruct the enforcement of the lien.

Ootton purchased- by a merchant from his customers at crop-gathering time is a market product. After a reasonable time it njay be .inferred the buyer has passed it on to the consumer. So, where cotton is bought in September and suit brought in January ■following, and the purchaser, who has first knowledge of the facts, makes no showing that the cotton is still on hand and available to the mortgagee, a jury question is presented under, such count.

So if Mr. Brock purchased from Mr. Lewis, the mortgagor, cotton covered by Mr. Culpepper’s recorded mortgage in excess of what was required to satisfy Mr. Brock’s prior mortgage, after paying the landlord’s rents, and such sale was not consented to or ratified by Mr. Culpepper, then he was entitled to recover either in trover or case. Albertville Trading Co. v. Critcher, 216 Ala. 252, 112 So. 907.

These issues were for the jury. The affirmative charge was properly refused as to each count.

Affirmed.

ANDERSON, O. J., and SAYRE and GARDNER, JJ., conenr.

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BOULDIN, J.

The mortgagee of cotton may maintain trover against a purchaser from the mortgagor without the mortgagee’s consent in two events: First, when the purchase and taking into possession is after the law day of the mortgage or the mortgagee is otherwise entitled to the possession under the terms of his mortgage. Second: if purchased before the law day and held or disposed of after the law day. Under our statute it is unlawful to sell mortgaged personalty without the mortgagee’s consent. The purchaser becomes a tort-feasor. Although no action of trover may lie at the time, if the wrongful dominion thus acquired is retained to the exclusion of the possessory right of the mortgagee after the law day, this is a conversion as of that date, which will support trover.

Under a count in a case for the destruction of the mortgage lien, the evidence must afford ground for reasonable inference that the cotton has been sold, removed, or otherwise so disposed of as to obstruct the enforcement of the lien.

Ootton purchased- by a merchant from his customers at crop-gathering time is a market product. After a reasonable time it njay be .inferred the buyer has passed it on to the consumer. So, where cotton is bought in September and suit brought in January ■following, and the purchaser, who has first knowledge of the facts, makes no showing that the cotton is still on hand and available to the mortgagee, a jury question is presented under, such count.

So if Mr. Brock purchased from Mr. Lewis, the mortgagor, cotton covered by Mr. Culpepper’s recorded mortgage in excess of what was required to satisfy Mr. Brock’s prior mortgage, after paying the landlord’s rents, and such sale was not consented to or ratified by Mr. Culpepper, then he was entitled to recover either in trover or case. Albertville Trading Co. v. Critcher, 216 Ala. 252, 112 So. 907.

These issues were for the jury. The affirmative charge was properly refused as to each count.

Affirmed.

ANDERSON, O. J., and SAYRE and GARDNER, JJ., conenr.

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Bluebook (online)

116 So. 126, 217 Ala. 289, 1928 Ala. LEXIS 458, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brock-v-culpepper-ala-1928.

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