Summary
In Bradford v. Proctor, 209 Ala. 299, 96 So. 203, we held an instrument of like form as the above to be an equitable mortgage which would not sustain an action of detinue.
Summary of this case from Yancey v. DenhamOpinion
8 Div. 545.
April 26, 1923.
Appeal from Circuit Court, Jackson County; W. W. Haralson, Judge.
Bouldin Wimberly, of Scottsboro, for appellant.
A mortgage passes title to the creditor, the possession usually remaining in the debtor. A purchase-money mortgage simply retains the title already in the seller as security for the debt. Sims v. Canfield, 2 Ala. 555; Am. Ins. Co. v. Blumberg Shoe Co., 204 Ala. 445, 85 So. 816. The instrument on which the plaintiff relied is a mortgage. Ellington v. Charleston, 51 Ala. 166; Langdon v. Buell, 9 Wend. (N.Y.) 80; 11 C. J. 404.
Proctor Snodgrass, of Scottsboro, for appellee.
The instrument was intended as a pledge. 31 Cyc. 800. And claimant, finding the property in the possession of the defendant, had a right to assume that the pledge had been discharged. 31 Cyc. 801; Jones on Pledges, 40; Casey v. Cavaroc, 96 U.S. 467, 24 L.Ed. 779; First Nat. Bank v. Caperton, 74 Miss. 857, 22 So. 60, 60 Am. St. Rep. 540; Am. Pig Iron Co. v. German, 126 Ala. 194, 28 So. 603, 85 Am. St. Rep. 21. The intention of the parties to an instrument does not control, where the rights of a third party intervene. 11 C. J. 405; Clanton Bank v. Robinson, 195 Ala. 194, 70 So. 270. The instrument contains no apt words of conveyance and cannot be construed as a mortgage. Minge Co. v. Barrett Bros., 10 Ala. App. 592, 65 So. 671.
This was a claim suit in detinue. The judgment, by the court, was for the claimant. The issue was the superiority of respective mortgages given by the defendant in detinue, on which the plaintiff and the claimant, respectively, rest their title and right to the immediate possession of the personal property made the subject of the suit. The plaintiff appeals, and assigns as error the judgment of the court in favor of the claimant for the mule sued for and made the subject of the claim.
Plaintiff's muniment of title purports to have been given of date of February 23, 1921, and filed in the probate office for record on the 9th day of May, its due date being November 15, 1921. It evidenced plaintiff's right, title, and interest in the mule, and was a mortgage, not a pledge. Oden v. Vaughn, 204 Ala. 445, 450, 85 So. 779. The evidence is sufficient to show a transfer of the personal property as security for the debt contracted in its purchase. That is to say, it is shown the parties intended a sale of the mule by its mortgage as "security" for the debt. Lewis v. Davis, 198 Ala. 81, 73 So. 419; Boyett v. Hahn, 197 Ala. 439, 73 So. 79; Deramus v. Deramus, 204 Ala. 144, 85 So. 397; Ellington v. Charleston, 51 Ala. 166; Bryant v. Bryant, 35 Ala. 315; Strong v. Gregory, 19 Ala. 146.
Claimant objected to the introduction in evidence of the foregoing mortgage, and, pending the objection, the plaintiff gave evidence substantiating the fact that it was the intention of the parties that the instrument was given as a purchase-money mortgage for the mule, as follows:
"That paper was given for the mule described in it. When I sold Chas. Bradford the mule he was engaged in farming, and the mule was sold to him for farming purposes. He was farming on the White place, where the corn was to be grown that was put in the mortgage. When I sold him the mule, I turned it over to him, and he took it and made a crop with it. I got possession of this mule in this suit before the claim was interposed. The paper was executed when I sold and delivered him the mule. He got the mule, and we went down to John Downey's to fill the paper out."
On cross-examination the plaintiff testified:
"I sold him the mule. When the trade was completed I delivered him the mule. After I delivered him the mule, he and I together went down to Downey's and filled out this paper, and he signed it. He rode the mule down there, then took it home with him, and had it in possession all the time until I took it under my writ of detinue."
On redirect examination the plaintiff further testified:
"Q. State what was the understanding or the agreement about securing the debt when you sold [the mule] to him? A. Twenty acres of corn and the mule.
"Q. What do you mean by 20 acres of corn and the mule? A. That was to secure the debt.
"Q. That was the agreement when you had this fixed up (referring to the mortgage of date of February 23, 1921)? A. Yes, sir."
The evidence further showed that the reasonable value of the mule was $127.
A purchase-money mortgage, if conveying the legal title, has the effect of retaining the title in the seller as security for the debt. Oden v. Vaughn, supra; Ellington v. Charleston, supra; Sims v. Canfield, 2 Ala. 555; Code 1907, § 4288. The effect of the sale of the mule and the security for the debt contracted in its purchase, evidenced by the paper writing offered in evidence by plaintiff, was merely an equitable mortgage.
The mortgage of date June 8, 1921, due November 1, 1921, evidencing claimant's title, was filed in the probate office for record on the 8th day of June, 1921, and embraced the mule in question. The claimant testified when he "took the [above-mentioned] mortgage on the mule in controversy it was in the possession of Charles Bradford [the mortgagor in the two mortgages], and Bradford told me at the time he owed some on the mule, but did not tell me that he had given a note against it."
In a claim suit within the statute, the superior equity will prevail. Code 1907, § 6039. Not so in a claim suit in detinue that is not embraced in the statute. Butler-Kyser Mfg. Co. v. Central of Ga. Ry. Co., 190 Ala. 646, 67 So. 393.
The action of the circuit court in finding the issue of fact for the claimant is without error.
Affirmed.
ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.