Howe v. Simison

Alabama Court of Appeals

Howe v. Simison

81 So. 837, 17 Ala. App. 59, 1919 Ala. App. LEXIS 82

CourtAlabama Court of Appeals

DecidedApril 15, 1919

Docket1 Div. 271.

StatusPublished

This text of 81 So. 837 (Howe v. Simison) is published on Counsel Stack Legal Research, covering Alabama Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Howe v. Simison, 81 So. 837, 17 Ala. App. 59, 1919 Ala. App. LEXIS 82 (Ala. Ct. App. 1919).

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Opinions

SAMFORD, J.

The plaintiff sued to recover the possession of a houseboat, claiming title through a mortgage executed by one Harry McCauley, the original owner of the boat. This mortgage was executed on June 4, 1913, to one Woody May. At the time of its execution all of the parties and the property were located in Clarke county. The mortgage was duly recorded in Clarke county on June 19, 1913. After several assignments, this mortgage finally became the property of the plaintiff, and on October 21, 1916, was foreclosed in Clarke county, and the property described therein bought by the plaintiff. Some time prior to December 24, 1914, McCauley, the mortgagor, removed the houseboat from Clarke county to Mobile county, where it remained and was kept by him for at least five months. On May 23, 1915, he removed it to Baldwin county, and about one month thereafter, for a valuable consideration, and without other notice than the original recordation in Clarke county, sold and delivered it to the defendant. Upon this sale the defendant justifies his retention.

The controlling issue in this case is determined by a proper construction of section 3376 of the Code of 1907, which is as follows:

“3376. Mortgages, etc., of Personal-Property, Where Recorded. — Conveyances of personal property to secure debts, or to provide indemnity, must be' recorded, in the county in which the grantor resides, and also in the county where the property is at the date of the conveyance, unless the property is immediately removed to the county of the grantor’s residence; and if before the lien is satisfied the property is removed to another county, the conveyance must be again recorded within three months from such removal, in the county to which it is removed.”

[1] It will be observed that the real question involved in a proper decision in this case is one of constructive notice. In order for the holder of a mortgage to be protected as against a purchaser for value, it must be shown that he has in all respects complied with the recordation statutes or that the purchaser had actual notice of his mortgage. The statutes providing for recordation being for the purpose of protecting the holder of the mortgage, and hence for the protection of those who become the purchasers of personal property, therefore section 33S6 provides:

“Conveyances of personal property to secure debts, or to provide indemnity, are inoperative against creditors and purchasers without notice, until recorded. * * * ”

*60 [2] This evidently means until recorded as required by the statutes of this state. The statute applicable to the present case is section 3376, hereinabove quoted, and if the recordation of plaintiff’s mortgage does not meet the requirements of section 3376, it is inoperative as against a purchaser for value and without actual notice. The mortgage was duly recorded in Clarke county, but the property was removed to Mobile county, where it remained for five months, during which time the mortgage was not recorded in Mobile county as required by the statute. The property was sold in Baldwin county, having been carried there from Mobile county, within a month after its removal from Mobile county. If the sale had taken place in Mobile county, there could have been no question as to defendant’s title. Wilkinson v. King, 81 Ala. 156, 8 South. 189; Pollak v. Davidson, 87 Ala. 554, 6 South. 312; Malone v. Bedsole, 93 Ala. 43, 9 South. 520; Lynn v. Broyles Co., 3 Ala. App. 634, 57 South. 122.

[3] In all of these cases it has been declared, in effect, that the mortgage, when the property is in Mobile county, as against creditors and purchasers without notice, had ceased to have any effect. In view of the decisions hereinabove cited, coupled with the language of the statute itself, we are constrained to hold that the recordation of the mortgage in Clarke county, having lost its effect in Mobile county, was not restored by the removal of the property to Baldwin county in such sort as to become notice as to innocent purchasers for value.

It follows, therefore, that the court was in error in rendering judgment for the plaintiff, and also in failing to render judgment for the defendant. The judgment of the trial court is reversed, and a judgment will be here rendered for the defendant.

Reversed and rendered.

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SAMFORD, J.

The plaintiff sued to recover the possession of a houseboat, claiming title through a mortgage executed by one Harry McCauley, the original owner of the boat. This mortgage was executed on June 4, 1913, to one Woody May. At the time of its execution all of the parties and the property were located in Clarke county. The mortgage was duly recorded in Clarke county on June 19, 1913. After several assignments, this mortgage finally became the property of the plaintiff, and on October 21, 1916, was foreclosed in Clarke county, and the property described therein bought by the plaintiff. Some time prior to December 24, 1914, McCauley, the mortgagor, removed the houseboat from Clarke county to Mobile county, where it remained and was kept by him for at least five months. On May 23, 1915, he removed it to Baldwin county, and about one month thereafter, for a valuable consideration, and without other notice than the original recordation in Clarke county, sold and delivered it to the defendant. Upon this sale the defendant justifies his retention.

The controlling issue in this case is determined by a proper construction of section 3376 of the Code of 1907, which is as follows:

“3376. Mortgages, etc., of Personal-Property, Where Recorded. — Conveyances of personal property to secure debts, or to provide indemnity, must be' recorded, in the county in which the grantor resides, and also in the county where the property is at the date of the conveyance, unless the property is immediately removed to the county of the grantor’s residence; and if before the lien is satisfied the property is removed to another county, the conveyance must be again recorded within three months from such removal, in the county to which it is removed.”

[1] It will be observed that the real question involved in a proper decision in this case is one of constructive notice. In order for the holder of a mortgage to be protected as against a purchaser for value, it must be shown that he has in all respects complied with the recordation statutes or that the purchaser had actual notice of his mortgage. The statutes providing for recordation being for the purpose of protecting the holder of the mortgage, and hence for the protection of those who become the purchasers of personal property, therefore section 33S6 provides:

“Conveyances of personal property to secure debts, or to provide indemnity, are inoperative against creditors and purchasers without notice, until recorded. * * * ”

*60 [2] This evidently means until recorded as required by the statutes of this state. The statute applicable to the present case is section 3376, hereinabove quoted, and if the recordation of plaintiff’s mortgage does not meet the requirements of section 3376, it is inoperative as against a purchaser for value and without actual notice. The mortgage was duly recorded in Clarke county, but the property was removed to Mobile county, where it remained for five months, during which time the mortgage was not recorded in Mobile county as required by the statute. The property was sold in Baldwin county, having been carried there from Mobile county, within a month after its removal from Mobile county. If the sale had taken place in Mobile county, there could have been no question as to defendant’s title. Wilkinson v. King, 81 Ala. 156, 8 South. 189; Pollak v. Davidson, 87 Ala. 554, 6 South. 312; Malone v. Bedsole, 93 Ala. 43, 9 South. 520; Lynn v. Broyles Co., 3 Ala. App. 634, 57 South. 122.

[3] In all of these cases it has been declared, in effect, that the mortgage, when the property is in Mobile county, as against creditors and purchasers without notice, had ceased to have any effect. In view of the decisions hereinabove cited, coupled with the language of the statute itself, we are constrained to hold that the recordation of the mortgage in Clarke county, having lost its effect in Mobile county, was not restored by the removal of the property to Baldwin county in such sort as to become notice as to innocent purchasers for value.

It follows, therefore, that the court was in error in rendering judgment for the plaintiff, and also in failing to render judgment for the defendant. The judgment of the trial court is reversed, and a judgment will be here rendered for the defendant.

Reversed and rendered.

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81 So. 837, 17 Ala. App. 59, 1919 Ala. App. LEXIS 82, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howe-v-simison-alactapp-1919.

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