Gafford v. Lofton

94 Ala. 333

• Court: Supreme Court of Alabama
• Decided: November 15, 1891
• Status: Published

Opinion

WALKER, J.

— The plaintiff claimed the personal property •sued for under a mortgage executed by the defendant to one Rosenfield. The defendant’s promissory note, and the mortgage to secure its payment, were embodied in one instrument. The mortgagee wrote and signed the transfer on the back of the instrument. The trial court held that, under the transfer to the plaintiff, he had no title to the property sued for, and that he could not recover in this action. Evidence of the mortgage and of the transfer thereof was excluded. This ruling was erroneous. An assignment indorsed and signed by the mortgagee upon a mortgage of personal property, conveys the legal title to the mortgaged property, and the assignee can sue in his own name to recover possession thereof. Graham v. Newman, 21 Ala. 497; Tison v. People's Saving & Loan Association, 57 Ala. 323. The one instrument containing both the note and the mortgage, the transfer carried the mortgagee’s entire interest. — Buell v. Underwood, 65 Ala. 285. The assignment conferred upon the assignee the same right which the mortgagee had had to maintain detinue for the recovery of the personal property conveyed by the mortgage, though there had been no foreclosure. — 2 Brick. Dig., p. 252, § 63. No other question is presented for review.

Reversed and remanded.