Hutto & Arnold v. Garner

Decision Date11 February 1913
Citation61 So. 477,7 Ala.App. 412
PartiesHUTTO & ARNOLD v. GARNER et al.
CourtAlabama Court of Appeals

Appeal from Circuit Court, Henry County; P.A. McDaniel, Special Judge.

Action by Mary W. Garner and others against Hutto & Arnold. Judgment for plaintiffs, and defendants appeal. Affirmed.

W.O Long, of Abbeville, for appellants.

J.E. Acker, of Ozark, for appellees.

WALKER P.J.

The plaintiffs (appellees here) claimed the horse sued for under a mortgage executed by one Newsome in January, 1910. Newsome lived in Dale county, and, at the time the mortgage was executed, the horse was in that county. On the day of its execution, the mortgage was duly filed for record in the office of the judge of probate of Dale county. It was never recorded elsewhere. On January 6, 1911, Newsome removed the horse to Henry county, and there, on that day traded it to the defendants. The defendants kept the horse in Henry county until the following June, when they sold it to one Deal, who subsequently, in January, 1912, resold it to them. When the defendants made the purchase from Newsome in January, 1911, they were chargeable with notice of the mortgage by the record of it in Dale county; three months not having elapsed after the date of the removal of the mortgaged property from that county. But when Deal bought the horse in June, 1911, he was not chargeable with notice by the recording of the mortgage in Dale county, as at that time more than three months had elapsed after the removal of the horse to Henry county. In such case, a mortgage, which has been recorded only in another county from which the property covered by it has been removed "ceases to have effect after such three months against creditors or purchasers of the grantor without notice." Code, § 3386; Malone v. Bedsole, 93 Ala. 41, 9 So. 520.

The appellants claim that, by their repurchase from Deal, they acquired as good a title as he had. In support of this claim they invoke the rule that a purchaser, with notice from one who acquired the property in good faith and without notice, is entitled to the benefits of the position of his vendor. Whitfield v. Riddle, 78 Ala. 99. But as was said in the opinion rendered in the case of Lockwood v. Tate, 96 Ala. 353, 11 So. 406: "An exception to this rule obtains when the property is reacquired by the original party who had obtained it with notice of the superior equity of another. It is not necessary, for the protection of the subsequent holder in good faith, to permit such original party to shelter himself under the former's good faith. All other persons may acquire...

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