Dulin v. Hunter

• Decision Date: 25 May 1893
• Citation: 13 So. 301,98 Ala. 539
• Parties: DULIN v. HUNTER.
• Court: Alabama Supreme Court

13 So. 301

98 Ala. 539

DULIN v. HUNTER.

Supreme Court of Alabama

May 25, 1893

Appeal from circuit court, Chambers county; James R. Dowdell, Judge.

Trover by E. W. Hunter against W. M. Dulin for the conversion of a mare. Judgment for plaintiff, and defendant appeals. Reversed.

The evidence, as shown by the bill of exceptions, tended to prove that on January 19, 1891, J. L. McCain executed to Mrs Hunter, the plaintiff, a mortgage on the mare involved in this suit. The evidence showed that this mortgage was filed for record in the probate office on March 14, 1891. The plaintiff proved the execution of the mortgage, and that the debt secured by it was not paid, and that the mare, the subject-matter of this suit, was the one described in said mortgage, and that the defendant took possession of said mare after plaintiff's mortgage was due. The defendant testified in his own behalf that on February 7, 1891, he purchased from one M. W. Carlisle & Bro. a certain mortgage which was executed by said J. L. McCain and one J. L. Peed to said Carlisle & Bro. on January 21, 1891, and which conveyed the mare which is involved in the present controversy, but that he did not know of the Hunter mortgage when this assignment was made, and did not know of it until it was filed for record. This mortgage was introduced in evidence and it was indorsed as having been assigned to the defendant. The defendant then proved the execution of said mortgage, and that a part of the debt secured thereby was unpaid. M. W Carlisle, one of the members of the firm of Carlisle & Bro., testified that, at the time of the execution of said mortgage to them by McCain and Peed, he had no notice of Mrs. E. W. Hunter's mortgage. McCain and J. L. Peed, as witnesses for the plaintiff, testified that at the time they conveyed the mortgage to M. W. Carlisle & Bro. they told M. W. Carlisle that Mrs. Hunter had a mortgage on one of the mares conveyed therein, which is the one involved in this suit. The court, among other things, instructed the jury as follows: "That, if they believed from the evidence that Carlisle had no [?] notice of the existence of Hunter's mortgage at the time he took the mortgage to Carlisle Bros., his notice would be chargeable to Dulin, though the latter had no notice, either actual or constructive, and they must find for the plaintiff." The defendant duly excepted to this portion of the court's general charge, and also separately excepted to the court's refusal to give each of the following charges requested by him: (1) "If the jury believe from the evidence that Dulin had notice of Hunter's mortgage, then they must find for the defendant." (2) "If the jury believe all the evidence, they must find for the defendant."

J. M. & E. M. Oliver, for appellant.

N. D. Denson, for appellee.

McCLELLAN J.

In respect of the rights of an assignee of a mortgage securing indebtedness not evidenced by negotiable paper, there are two distinct lines of authority, establishing different doctrines in their respective jurisdictions. In New York, and perhaps in one or two other states, the rule is that the purchaser of such a mortgage succeeds only to the rights of the mortgagee and is chargeable with notice of, and takes subject to, the equities existing, not only between the mortgagor and mortgagee, but also between the latter and third persons, at the time of the transfer. Bush v. Lathrop, 22 N.Y. 535. In other states-Pennsylvania, New Jersey, and Michigan among them-the assignee of such a mortgage is...