Bank of Hartford v. McNeal
| Decision Date | 27 April 1922 |
| Docket Number | 4 Div. 986. |
| Court | Alabama Supreme Court |
| Parties | BANK OF HARTFORD v. MCNEAL. |
Rehearing Denied June 30, 1922.
Appeal from Circuit Court, Geneva County; H. A. Pearce, Judge.
D McNeal brought attachment suit against B. S. Price, and execution was levied on crops of the defendant. The Bank of Hartford interposed its claim to the property, and on trial of the right of property there was judgment for plaintiff from which the claimant appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911. Affirmed.
Farmer Merrill & Farmer, of Dothan, for appellant.
E. C. Boswell and W. O. Mulkey, both of Geneva, for appellee.
McNeal rented lands to B. S. Price for the year 1920. In December of that year McNeal sued out an attachment against Price seeking to enforce his landlord's lien for a balance of $400 due to him for rent. The attachment was levied on crops grown by the defendant during the year. Appellant bank interposed, claiming under a mortgage. On the trial of the right of property, thus set on foot, the bank claimed that plaintiff's lien had been satisfied, and the claim suit, tried by the court without a jury, went off on this point; the court holding with the plaintiff in attachment.
It is shown in evidence that prior to the issue of attachment Price, acting on the suggestion of the bank, delivered two mules to plaintiff in satisfaction of the $400 balance due for rent, and the mules were so accepted by plaintiff. Afterwards plaintiff became apprised of the fact-theretofore unknown to him-that these mules were covered by three separate prior mortgages, aggregating more than $7,000, two of which were held by the bank, the other, an inferior mortgage, by A. W. Price, a kinsman of the defendant. It is to be inferred that the bank had, prior to the transactions in question, foreclosed its mortgages, purchasing the property. We accept the fact as if well proved. Plaintiff, after receiving the mules from the tenant Price, sold them on credit to one Lofton, another tenant; but, upon learning of the mortgages, caused them to be tendered back to Price as in rescission of the trade in which he had accepted them, Price, still acting under advice of the bank, refused to accept the mules, and afterwards A. W. Price claimed them, and got them, under his mortgage. Thereupon plaintiff sued out his attachment.
The ultimate question presented is whether plaintiff had a right to rescind. As against his tenant Price and as the facts appeared to him plaintiff had a clear right to rescind by reason of the breach of an implied warranty of title, even though there was no actual fraud. McCoy v. Prince, 197 Ala. 665, 73 So. 386, and same case 11 Ala. App. 388, 66 So. 950, where our previous cases are cited. It is true that the bank, by reason of the fact that it procured Price to sell the mules to plaintiff, would have been estopped to deny, in an action between it and plaintiff, that plaintiff had acquired title by his trade with Price; but plaintiff had no relations with the bank in respect of these mules, had no contract with it-had bargained for Price's title, not the bank's-and, as we have said, knew nothing of the bank's activities in bringing...
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