Kinney v. Foust

95 So. 911, 19 Ala. App. 183, 1923 Ala. App. LEXIS 73

• Court: Alabama Court of Appeals
• Decided: April 3, 1923
• Docket: 6 Div. 105.
• Status: Published

Opinion

SAMFORD, J.

This is an action of detinue for the recovery of a mule/ Girley & Son executed and delivered to Goddard Bros., Copeland & Head a note and chattel mortgage to secure an indebtedness of $750/ This paper was dated March 30, 1920, and due October 1, 1920, and described and included one black mare mule, the subject of this suit. On or about May 1, 1920, the plaintiff paid ,to Goddard’ Bros., Copeland & Head “value for the mortgage,” and the note and mortgage was delivered to plaintiff “with the in-dorsements thereon.” The note and mortgage; being a promise to pay and a conveyance of personal property to secure payment, all in the same paper, and what is commonly called a “Bobtail Mortgage,” was duly recorded in the office of the judge of probate of Blount county on the 3d day of April, 1920, and was so indorsed by the probate judge. Besides this indorsement and the other formal indorsements usual to such papers appears the following:

“I hereby certify that the privilege tax required by law on the within mortgage has been paid by the lender or creditor,”

and signed by the payee, Goddard Bros., Copeland & Head. So far as appears from the record no other indorsement was on the mortgage at the time of its delivery to plaintiff:

The agreed statement of facts was as follows:

“In the above-styled cause it is agreed that the mortgage by Ered Girley and G. W. Girley to. Goddard Bros., Copeland & Head was delivered to E. C. Kinney with the indorsement thereon on or about May 1, 1920, that Ered Girley nor G. W. Girley had any notice of the transfer or delivery of the mortgage above referred to until October, 1920, and which was or purports to have been executed by said Ered Girley and G. W. Girley to Goddard Bros., Copeland & Head for the sum of $750 on the 30th day of March, 1920, and recorded in volume 92, at page 504, of Mortgage Records in the office of the judge of probate of Bloiint .county, Ala., on the 3d day of April, 1920. It is further agreed that, before the purchase -of the mule .or mules described in the said mortgage by V. Foust from the said Fred Girley and G. W. Girley, the said payees named in said mortgage, Goddard Bros., Copeland & Head^ authorized the said Fred Girley and G. W. 'Girley to trade or sell said mule or mules to defendant, V. Foust, and at a time when the said Ered Girley, and G. W. Girley did not know that said note or” mortgage had been transferred or delivered to plaintiff, E. C. Kinney, nor did the said Ered Girley and G. W. Girley know or Have knowledge that the said mortgage did not belong to said Goddard Bros., .Copeland & Head. The mortgage above referred to is hereto attached as an exhibit to this agreement. It is further agreed that the said V., Foust purchased the mule sued for in this cause from J. A. Head, who was a member of the firm of Goddard Bros., Copeland & Head, and not from the said Girleys, and after said mule had been delivered back to the payees in said mortgage in satisfaction of the said mortgage. It is.further agreed that the plaintiff made demand upon the defendant for said mule before the commencement of this suit, which demand was refused. It is agreed that the value of the mule sued for was $225 at the time the defendant got it. It is further agreed that plaintiff paid value for the mortgage hereto attached before the due date Of the same, and had no knowledge or notice of any infirmities in said paper. It is also agreed that defendant paid value for the mule sued for to the payees of said note at the time he bought said mule from said payees in said mortgage, and that he had no knowledge or notice .of the transfer of said mortgage to the plaintiff, nor did he have knowledge of any facts which would put him on notice of said transfer or delivery of said mortgage. It is further agreed by the parties to this suit and their attorneys that this cause be submitted to the court for decision without a 'jury, and the demand by the defendant for a jury to try this cause is hereby withdrawn. This the 10th day of April, 1922.”

The indorsement quoted above was a certificate filed in accordance with the requirements of schedule 71 of the Revenue Law (Acts 1919, p. 420), which provides for the payment of a tax of 15 cents per $100 on all indebtedness secured by mortgage and without which the paper could not have been received for record. This leaves the mortgage above referred to, and the basis of plaintiff’s title to the property sued for, without any written transfer from the payees to the plaintiff.

We cannot look outside the record to ascertain the fact of additional iridorsements, if such there were, on’ the mortgage at the time of trial, and there is nothing in the agreed statement of facts or in the judgment of the court ,to indicate that title to the property sued for was conceded to be in plaintiff. The agreed statement of facts speaks of the mortgage as having been “transferred or delivered,” and at another place as “delivered to Kinney vtith the indorsements thereon.” The statement, being in the alternative, is no stronger than the weakest alternative, which is that’ it was delivered with the in-dorsements thereon, and the indorsements as shown by the record do not include a written transfer or anything- that is equivalent thereto. A chattel mortgage is within the purview of section 5158 of the Code of 1907, authorizing an assignment by indorsement thereon as effectual to authorize the transferee to sue in his own name. Smith v. Lusk, 119 Ala. 395, 24 South. 256; Sanders v. Rqdgers, 16 Ala. App. 231, 77 South. 69; Phillips v. Sellers, 42 Ala. 658.

It appears from the record that plaintiff did not have the legal title to the property- involved in the- suit, and therefore could not maintain the actipn. Without passing on the other question involved, the judgment of the circuit court must be affirmed.

Affirmed,.