Chadwick v. Russell

• Decision Date: 07 April 1898
• Citation: 117 Ala. 290,23 So. 524
• Parties: CHADWICK v. RUSSELL.
• Court: Alabama Supreme Court

23 So. 524

117 Ala. 290

CHADWICK v. RUSSELL.

Supreme Court of Alabama

April 7, 1898

Appeal from circuit court, Marshall county; J. A. Bilbro, Judge.

Action by James T. Chadwick against W. W. Russell. There was a judgment for defendant, and plaintiff appeals. Affirmed.

In the complaint there was a count for trespass and one for trover. Issue was joined upon the plea of the general issue. The evidence showed that one Bush, being the owner of the property involved in the controversy, executed a mortgage thereon to the defendant on July 18, 1894, which mortgage was duly recorded the following day. Subsequently Bush sold the property to one Thomas for a valuable consideration. Thomas sold the property to one Brock. Brock sold to one Noblet, and Noblet sold the property to the plaintiff. None of the several purchasers had any actual notice of the existence of the mortgage upon the property to the defendant. There being default in the payment of the mortgage, the defendant took possession, and sold it under the power contained in the mortgage, at which sale he became the purchaser thereof. Upon these facts, the court, at the request of the defendant, gave the general affirmative charge in his behalf, to the giving of which charge the plaintiff duly excepted. There were verdict and judgment for the defendant. The plaintiff appeals, and assigns as error the giving of the general affirmative charge requested by the defendant.

O. D Street, for appellant.

Davis &amp Haralson, for appellee.

McCLELLAN J.

A plausible, if not a forcible, argument can be made and has been made in this case for a difference between the registration of a mortgage of realty and one of personalty in respect of constructive notice to subpurchasers under the mortgagor; the insistence being that the record should be, as it is, notice to all subpurchasers of real estate, but should not be notice to any except the immediate purchasers of personalty; but we think the argument should be addressed to the legislature, and not to the courts. Under the law as written we see no room for the distinction. Section 1814 of the Code of 1886, relative to the registration of conveyances of personalty, affords no ground upon which to give it a different construction in respect of the parties affected by notice from that which is established of section 1810 as to the registration of conveyances of real estate in the particular under consideration. The...