SOMERVILLE, J.
(1) When a claimant of personalty brings suit in detinue or trover against one in possession as mortgagee from a third person, a meritorious judgment of title in favor of the defendant is conclusive evidence of title in favor of a purchaser from such mortgagee after suit filed, although the purchase was made before such judgment was rendered. — - Coles v. Allen, 64 Ala. 98, 106.
[107]*107Defendant’s special plea 4 stated every element of an estoppel by former judgment against plaintiff in favor of defendant’s vendor, and the trial court erred in sustaining the demurrer thereto.
(2) So far as the legal title to the mule is concerned., and that is the decisive question here, it is immaterial whether the Poteet foreclosure of the Thatch Key mortgage was regular or not. If Thatch Key’s title was superior to the plaintiff’s title when he gave the mortgage to Poteet, defendant must prevail under his plea of the general issue, unless plaintiff can show a superior title derived from Thatch Key. — Harmon v. Dothan Nat. Bank, 186 Ala. 360, 64 South. 621.
(3,4) This she attempts to do by showing that he gave a prior mortgage to one Gilchrist, and that she acquired that title by transfer of the mortgage from Gilchrist. The effort fails, however, not only because the Gilchrist mortgage was not recorded when the Poteet mortgage was given, for value and without actual notice to Poteet of the Gilchrist mortgage, but also because the undisputed evidence shows that plaintiff paid the mortgage and received its surrender as a discharged instrument; her request to Gilchrist to transfer it to her when she paid the debt, even if she made it, not per se operating as a legal transfer of the mortgage to her.
For the error in sustaining the demurrer to plea 4, and for the giving and refusal of charges in conflict with the principles stated, the judgment will be reversed, and the cause remanded.
Reversed and remanded.
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