C. Scheussler & Sons v. Heard
| Decision Date | 01 May 1919 |
| Docket Number | 5 Div. 722 |
| Parties | C. SCHEUSSLER & SONS v. HEARD. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Tallapoosa County; S.L. Brewer, Judge.
Action by C. Scheussler & Sons against Lon Heard. Judgment for defendant, and plaintiffs appeal. Transferred from Court of Appeals under section 6, p. 449, Acts 1911. Affirmed.
James W. Strother, of Dadeville, for appellants.
D.W Crawford and J. Percy Oliver, both of Dadeville, for appellee.
This action is detinue, instituted by the appellants against the appellee. There was judgment for the defendant. The appellants attributed their right to recover the chattels in question to their relation as mortgagee to appellee as mortgagor. The property sued for is a black mule, named Pete a bay mule, named Alec; a cow, called Beaut, and her increase; and a cow, called Lilly. The defendant (appellee) pleaded, in addition to the general issue and also the statutory suggestion (Code, § 3789, which requires the ascertainment of the mortgage debt, etc.), payment of the mortgage debt before the commencement of this suit, and also "that in the note secured by said mortgage there is embraced the sum of, to wit, $200 usurious interest."
No question with respect to the sufficiency of the pleading appears to have been raised.
The defendant was a tenant of other parties. The plaintiffs "furnished" him goods, supplies, etc., to make the crops for the years 1910 to 1915, inclusive. The plaintiffs introduced in evidence the several crop and chattel mortgages to be described. The date, amount, and time of maturity of these mortgages are as follows:
(This mortgage covered crops, but did not describe any of the property sued for in this action.)
The two mules described in the complaint were described in the mortgage of date December 9, 1911; but the cows were not described therein. The mortgage of date June 22, 1912 covered these mules, and also described the cow Lilly and her calf. The mortgage of date March 5, 1913, covered the animals described in the mortgage of date June 22, 1912. The mortgage of date March 4, 1915, embraced the mules described in the complaint and the cow called Beaut, and her increase, but did not describe the cow called Lilly. A form was used in preparing these mortgages. They covered the crops for a designated year and each successive year until paid in full. They respectively provided that possession of the property subject thereto might be taken by the mortgagees, and also for foreclosure, upon default, by a public sale, to the higest bidder for cash, in front of the courthouse door in Tallapoosa county, after ten days' notice.
There has been no foreclosure of these mortgages in accordance with the terms prescribed therein....
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