Argo v. Sylacauga Mercantile Co.

• Decision Date: 06 April 1915
• Docket Number: 142
• Citation: 68 So. 534,12 Ala.App. 442
• Parties: ARGO v. SYLACAUGA MERCANTILE CO.
• Court: Alabama Court of Appeals

68 So. 534

12 Ala.App. 442

ARGO v. SYLACAUGA MERCANTILE CO.

No. 142

Court of Appeals of Alabama

April 6, 1915

Appeal from Circuit Court, Coosa County; S.L. Brewer, Judge.

Action by the Sylacauga Mercantile Company against Robert Argo. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The complaint contained two counts, both of which claim for the conversion of a red mule. The fourth count is that J.J Sprayberry was a privy to this defendant in the possession of the mule involved in this suit, succeeded defendant in possession, and obtained possession of said mule from this defendant, and defendant avers that plaintiff took possession of said mule from said Sprayberry without his consent, and that Sprayberry brought his suit in the circuit court of Coosa county at Goodwater against these plaintiffs for the conversion of said mule, and that the title of said mule was involved in said suit (a copy of the summons, complaint, and judgment is made an exhibit) and said suit resulting in a judgment in favor of the said Sprayberry, thereby determining and settling the title to said mule to be in said Sprayberry defendant's privy, and defendant pleads such judgment and suit as estoppel against his plaintiff from claiming title to said mule, and defendant avers that all the right, title, and interest plaintiff had in said mule was acquired prior to the bringing of the said suit by Sprayberry.

Statement of Facts by the Court.

Action of trover by appellee against the appellant for the conversion of a mule. On January 17, 1908, D.H. Hazel and J.L Mann executed to the Sylacauga Mercantile Company a mortgage embracing, among other property, "one red horse mule about nine years old, named Henry." This mule was one of two mules sold by Mann to Hazel a short time before the execution of the mortgage. There was evidence tending to show that there was a balance due on this mortgage for goods furnished to Mann and Hazel by appellee during the year 1908 and the evidence showed that, about the 26th day of September, 1908, Hazel traded one of the mules, which he procured from Mann, to W.B. Abrams, in Talladega county; that shortly thereafter Abrams carried the mule into Coosa county and traded it to Charlie Grimes, and there was evidence, at least by one witness, that the mule traded by Abrams to Grimes was not the mule which Abrams, obtained from Hazel. Ed Sprayberry was a tenant of the appellant, and by arrangement between appellant and Sprayberry, Sprayberry purchased a mule from Grimes, which some of the witnesses described as a "light bay mule" and others as a "brown mule or a reddish-brown mule." After Sprayberry had arranged to purchase the mule and it had been delivered to him, the appellant paid Grimes for the mule. The appellant contended that the contract between him and Ed Sprayberry was merely a loan of $85 to pay for the mule; that he acquired no interest whatever in the mule itself. The transaction between Grimes and Ed. Sprayberry took place about one month and a half before Chrlstmas of 1908. After the purchase of the mule by Ed Sprayberry from Grimes, Sprayberry, who was engaged in farming as tenant of appellant, made arrangements with appellant to let his uncle, John Sprayberry, have the mule and assume the payment of the indebtedness. The transaction was closed between appellant and John Sprayberry, appellant taking John Sprayberry's note for the amount of the purchase money. This transaction between John Sprayberry and the appellant occurred about January 8, 1909, after the expiration of three months from the time Abrams brought the mule into Coosa county. The mortgage was never recorded in Coosa county, and the contention of appellee is that appellant was the purchaser of the mule, and that Ed Sprayberry was an agent of the appellant. The defendant's fourth plea sets up as an estoppel against the plaintiff's right to maintain this action the judgment of the circuit court of Coosa county in an action of trespass brought by John Sprayberry against the appellee. The trial court sustained a demurrer to this plea, assigning, among other grounds, one in substance that the fact that Sprayberry recovered a judgment against the plaintiff for damages for wrongfully taking the mule does not show that defendant was not guilty of a conversion of the mule before he sold it to John Sprayberry.

Riddle Ellis & Riddle, of Goodwater, for appellant.

George A. Sorrell, of Alexander City, for appellee.

BROWN J.

The recordation of the mortgage executed by Hazel to appellee in the county of the mortgagor's residence, and in which the property was situated at the time of its execution, operated as constructive notice to all persons of its contents and of the lien or title of the appellee thereunder to the property covered by the mortgage, while it remained in Talladega county, and, if property covered by the mortgage was removed fron Talladega into Coosa county, for three months after its removal into Coosa county. Code 1907, §§ 3373, 3376; Chadwick v. Russell, 117 Ala. 290, 23 So. 524; Williams v. Vining, 150 Ala. 482, 43 So. 744; Stickney v. Dunaway & Lamar, 169 Ala. 466, 53 So. 770.

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