McBride McMillian v. Kyle.

92 So. 455, 207 Ala. 273, 1922 Ala. LEXIS 56

Opinion

McCLELLAN, J.

Detinue instituted by appellee against appellants to recover a mule. The mule belonged to appellants. The appellee later bought the mule, for a cash consideration, on the streets of Huntsville. He claimed to be, and was by the court below held, an innocent purchaser ior value and without notice

On a fraudulent order, over the forged signature of “J. H. Bowers,” promising to join in a mortgage to secure the purchase price, appellants delivered the mule to a darky named Lucket. One of the appellants testified that no sale of the mule was then or later made; but, to the contrary, the delivery of the mule to Lucket was for the purpose of permitting the mule to be taken by the negro to Bowers’ farm, for Bowers to inspect the animal. Manifestly, the effect of this testimony by one of the appellants was to show that no sale was then consummated; that the title did not pass to Lucket or to Bowers. This testimony for appellants was contradicted by that given by appellee’s witness Brooks, appellee’s landlord. He testified that one of the appellants told him that “they had sold the mule to Mr. Bowers; * * * that they had sold it to the negro-on the order of Mr. Bowers.” In view of this conflicting evidence, touching the material inquiry whether there was a sale of the mule by' appellants, whether the title passed from them, it was open to the court, trying the case without jury, to find that, though thus fraudulently thereunto induced, appellants parted with the title to the mule, consummated a sale thereof either to Lucket or Bowers.

Given that finding upon the issue of fact by the trial court — a conclusion necessary to logical progress to the judgment that was accorded appellee — tlie principle stated and ■illustrated in Lightman v. Boyd, 132 Ala. 018, 32 South. 714, governs the case, and its application requires an affirmance of the judgment. If, as was evidently concluded by the trial court, a sale of the mule was made prior to appellee’s purchase, the appellee was a hona fide purchaser for value (so° far as appellants were concerned), and entitled to be so protected, notwithstanding the fraudulent device that induced appellants to part with their property “with the intention of sale.” Moore v. Robinson, 62 Ala. 537; 35 Cyc. pp. 361, 362; Peterson v. Steiner, 108 Ala. 629, 18 South. 688. There was no evidence of notice of the fraud that would preclude appellee’s being a bona fide purchaser, due to be protected in his rights. It is hardly necessary to state that there was no evidence of a felonious tailing of the mule from appellants.

These considerations dispose of the only matter insisted upon in brief for appellants. The judgment is affirmed.

Affirmed.

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.