Butler Cotton Oil Co. v. G.H. Campbell & Son

• Decision Date: 07 May 1918
• Docket Number: 8 Div. 545
• Citation: 16 Ala.App. 445,78 So. 643
• Parties: BUTLER COTTON OIL CO. v. G.H. CAMPBELL & SON.
• Court: Alabama Court of Appeals

78 So. 643

16 Ala.App. 445

BUTLER COTTON OIL CO. v. G.H. CAMPBELL & SON.

8 Div. 545

Court of Appeals of Alabama

May 7, 1918

Appeal from Circuit Court, Marshall County; W.W. Haralson, Judge.

Action by G.H. Campbell & Son against the Butler Cotton Oil Company for conversion of cotton. Judgment for plaintiff, and defendant appeals. Affirmed.

McCord & Orr, of Albertville, for appellant.

A.E Hawkins, of Albertville, for appellee.

SAMFORD J.

The plaintiff claimed title by virtue of a mortgage which he claimed was given by one Frazier. It was therefore competent to prove the execution of the mortgage by Frazier and the amount due on the mortgage, and the court will not be put in error for permitting this proof before the production of the paper, where the mortgage is immediately produced identified, and introduced in evidence.

It is undoubtedly the law in this state that to maintain trover the plaintiff must have, at the time of the conversion, the title, general or special, to the property, and the immediate right of possession. Holnan v. Ketchum, 153 Ala. 360, 45 So. 206: Johnson v. Wilson, 137 Ala. 468, 34 So. 392, 97 Am.St.Rep. 52; Baker v. Patterson, 171 Ala. 88, 55 So. 135; Chapman v. Metcalf, 165 Ala. 567, 51 So. 745.

It is also a general rule that a second mortgage of chattels has a mere lien, as against a prior mortgage, which will not support an action of trover as against the prior mortgagee, and those holding under him. Baker v. Patterson, supra.

But it is also the law that as to all the world, except the mortgagee, the mortgagor holds the legal title to the property, upon which, as against a third person, he can maintain either trespass or trover. And in a suit by a second mortgagee against a purchaser for the conversion of chattels embraced in the mortgage, such purchaser, in order to successfully plead a prior mortgage as a defense, must connect himself with the prior mortgage. Marks v. Robinson & Ledyard, 82 Ala. 69, 2 So. 292; Henderson & Rainer v. Murphree, 124 Ala. 223, 27 So. 405; Denby v. Mellgrew, 58 Ala. 147; Scott v. Ware, 65 Ala. 174. The court in its oral charge clearly stated this rule, and submitted to the jury the question as to whether the defendant had connected itself with the title of the first mortgage, the plaintiff claiming under a second mortgage. Under the evidence, this was a question for the jury, and the court in its various rulings on this point, including the refusal of the affirmative charge as requested by defendant, was not in error.

The next question presented is the defendant's contention that the mortgage to plaintiff was obtained by fraud. "When the execution of a written instrument is obtained by misrepresentation of its contents, and a party is induced by such fraud to sign an instrument he did not know he was signing, and which he did not really intend to sign, the party so defrauded can avoid the effect of his signature, because of the fraud practiced upon him, notwithstanding he may have neglected to read the instrument, or to have it read to him." Leonard v. Roebuck, 152 Ala. 312, 44 So. 390; Beck v. Houppert, 104 Ala. 503, 16 So. 522, 53 Am.St.Rep. 77; Bank of Guntersville v. Webb, 108 Ala. 137, 19 So. 14; Tillis v. Austin, 117 Ala. 262, 22 So. 975.

But in order for mere silence to constitute fraud, there must be an intentional concealment, not merely accidental; there must be a...