Cannady v. Jinright

• Decision Date: 02 March 1950
• Docket Number: 3 Div. 543
• Citation: 44 So.2d 737,253 Ala. 341
• Parties: CANNADY et al. v. JINRIGHT.
• Court: Alabama Supreme Court

Page 737

44 So.2d 737

253 Ala. 341

CANNADY et al. v. JINRIGHT.

3 Div. 543.

Supreme Court of Alabama.

March 2, 1950.

Hill, Hill, Whiting & Harris, of Montgomery, for appellants.

Hill, Hill, Stovall & Carter, of Montgomery, for appellee.

LAWSON, Justice.

This is a suit by James T. Jinright against Hanna Motor Company, Inc., and B. L. Cannady. The complaint was finally amended so as to leave only count 2, which charged the defendants with the conversion of an automobile. The defendants interposed a number of pleas, but plaintiff's demurrer was sustained as to all pleas except 5, 6, 7, and 8.

The trial court gave the general affirmative charge with hypothesis in favor of the plaintiff. There was verdict for plaintiff. Judgment was in accord with the verdict. The defendants have appealed to this court.

Immediately after the suit was filed, the defendants moved that the cause be transferred to the equity side. Plaintiff's demurrer to this motion was sustained. This action of the court is assigned as error. Demurrer is the proper method to test the motion. Ex parte Brown & Co., 240 Ala. 157, 198 So. 138. It is well settled that such action of the trial court is not reviewable on appeal from a final decree. Allison v. Owens, 248 Ala. 412, 27 So.2d 785; Esslinger v. Spragins, 236 Ala. 508, 183 So. 401. Mandamus is the proper remedy. Ex parte Brown & Co., supra.

It is a settled rule of pleading that in an action of trover the plea of not guilty puts in issue every matter of defense which might he specially pleaded in bar, excepting release, and that there can be no necessity for encumbering the record with special pleas. Sullivan v. Miller, 224 Ala. 395, 140 So. 606; Bryan v. Day, 225 Ala. 687, 145 So. 150. It follows that there was no error committed by the court of which the defendant can complain in sustaining demurrer to the defendants' pleas 1, 2, 3, 4, 9, and 10. Sullivan v. Miller, supra.

On June 2, 1948, one Robert Morris, Jr., a resident of Chilton County, secured an automobile from Hanna Motor Company, a Jefferson County automobile concern, by making a down payment and entering into a conditional sale contract for the balance, under the terms of which contract the title to the automobile remained in the seller, the Hanna Motor Company, until payment of all the purchase price.

The conditional sale contract was recorded in Chilton County on, to wit, June 9, 1948.

Morris brought the automobile to Montgomery County and on July 22, 1948, executed a bill of sale to the said automobile to McGough Chevrolet Company, a Montgomery concern. The McGough Company had no knowledge of the conditional sale contract under which Morris had secured the automobile from Hanna Motor Company.

On July 26, 1948, the McGough Company purported to sell the automobile to the plaintiff, James T. Jinright, who immediately drove it to his home, Troy, Pike County, Alabama, where it remained until November 24, 1948. Jinright had no knowledge of the aforementioned conditional sale contract.

The defendant, B. L. Cannady, an agent of the defendant, Hanna Motor Company, located the car in Jinright's possession in Troy, Alabama, and on November 24, 1948, secured possession on behalf of his principal. This suit was instituted shortly thereafter.

Jinright's title, of course, depends on that of McGough Chevrolet Company. It was Jinright's contention that McGough Chevrolet Company purchased the automobile from Morris for a valuable consideration and without notice of the conditional sale contract; that Hanna Motor Company had not recorded the said contract as required by § 131, Title 47, Code 1940, as amended, and that, therefore, said contract was void as far as McGough Chevrolet Company was concerned.

As here pertinent, § 131, Title 47, Code 1940, as amended, reads as follows: '* * * contracts for the conditional sale of personal property, by the terms of which the vendor retains the title until payment of the purchase money and the purchaser obtains possession of the property * * * are * * * void against purchasers for a valuable consideration * * * without notice thereof, unless such contracts are in writing and recorded in the office of the judge of probate of the county in which the party so obtaining possession of the property resides, and also the county in which such property is delivered and remains; and if before the payment of the purchase money or the sum or value stipulated, the property is removed to another county, the contract must be again recorded within three months from the time of such removal, in the county to which it is removed; * * *.'

The conditional sale contract was never recorded in Montgomery County nor in Pike County. The pertinent provisions of the law now codified as § 131, Title 47, Code 1940, as amended, have been construed by the appellate courts of this state on several occasions. Such provisions have been construed to mean that unless the conditional sale contract is recorded, as therein provided, it is void as against a person who may have purchased the property covered by the contract for value without notice. Harris Motors, Inc., v. Universal C. I. T. Credit Corp., Ala.Sup., 45 So.2d 1; Jackson v. Parker, 252 Ala. 167, 40 So.2d 649; Pulaski Mule Co. v. Haley & Koonce, 187 Ala. 533, 65 So. 783, Ann.Cas. 1916A, 877; Harris v. Leeth Nat. Bank, 21 Ala.App. 83, 105 So. 434; Lynn v. Broyles Furniture Co., 3 Ala.App. 634, 57 So. 122.

Appellants contend that the provisions of § 131, Title 47, supra, have no application to the instant case in that McGough Chevrolet Company was not a purchaser for a valuable consideration without notice. We cannot agree with this contention.

It is not insisted that the McGough Company had actual notice of the existence of said contract. But appellants do contend that since the McGough Company knew that Morris was a resident of Chilton County and that the automobile bore a Chilton County license tag, it was incumbent upon that company to make investigation in the office of the judge of probate relative to the recordation of the conditional sale contract covering the automobile, and that the failure to do so deprives the McGough Company of the status of an innocent purchaser without notice.

True, it is incumbent upon the vendor to record the contract in the county of the residence of the purchaser, as was done in this case. Unless it is so recorded, a timely recordation in a county to which the property...