Hickey v. McDonald Bros.

• Decision Date: 04 February 1909
• Parties: HICKEY v. MCDONALD BROS.
• Court: Alabama Supreme Court

48 So. 1031

160 Ala. 300

HICKEY v. MCDONALD BROS.

Supreme Court of Alabama

February 4, 1909

Rehearing Denied April 5, 1909.

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Detinue by McDonald Bros. against T. J. Hickey. From a judgment for plaintiffs, defendant appeals. Affirmed.

The facts in this case are sufficiently stated in a former report of this case in 151 Ala. 497, 44 So. 201, 13 L. R. A. (N. S.) 413, reference to which is here made. The following charges were requested by the defendant and refused: (1) The general affirmative charge. (3) "The court charges the jury that if they believe from the evidence in this case that Hickey did not have any notice of the mortgage to McDonald Bros and they further believe from the evidence that Hickey did not have any information which, if followed up, would lead to notice of said mortgage to McDonald Bros., then you must find for the defendant, and assess the alternate value of the property, and also assess the damages for the detention of the same." (4) "The court charges the jury that if they believe from the evidence that Hickey, the defendant in this case, had no notice of the mortgage to McDonald Bros nor any information which, if followed up, would lead a reasonably prudent man to notice that Tilly had obtained the mule by fraud, and that McDonald Bros. held a mortgage on said mule, before the purchase of the mule from Tilly, then you must find for the defendant." (5) "The court charges the jury that, before the plaintiffs can recover in this case, they must prove that the defendant received such notice, or was placed in possession of such facts, as, if followed up, would lead to notice of the existence of the McDonald mortgage, before the defendant purchased the mule from Tilly." (7) "The court charges the jury that if they believe from the evidence in this case that T. J Hickey, the defendant in this case, had no notice of the mortgage to McDonald Bros., nor any information which, if followed up, would lead a reasonably prudent man to notice that Tilly had obtained the mule by fraud, and that McDonald Bros. held a mortgage on said mule, before the purchase of said mule from Tilly, then you must find for the defendant and assess the alternate value of the property at $225, and the value of the hire or detention at $90."

Inge & McCorvey, for appellant.

Sullivan & Stallworth, for appellees.

ANDERSON J.

When this case was here before (reported in 151 Ala. 497, 44 So. 201, 13 L. R. A. [ N. S.] 413) this court held that the plaintiffs parted with the title to the mule under the sale. Consequently, on the trial from which this appeal is taken, the plaintiffs were put to their title under the mortgage given them by the purchaser at said sale. As the mortgage had not been recorded, the issue was whether or not the defendant was such a purchaser as is protected under the terms of section 3386 of the Code of 1907. "Purchasers without notice," as mentioned in section 3386 of the Code of 1907, has been construed to mean bona fide purchasers without notice. Morris v. Bank of Attalla, 142 Ala. 638, 38 So. 804; Southern Association v. Riddle, 129 Ala. 562, 29 So. 667. In the Morris Case, supra, it was held that, because the consideration of the subsequent purchaser was tainted with usury, he was in no position to invoke the statute of registration against the prior purchaser, whose mortgage had not been recorded, and of which the usurious mortgagee had no notice. If, therefore, the fact that usury, constituting a part of the evidence, prevented the purchase from being bona fide, any facts put in the possession of the second purchaser, which should cause a prudent man to investigate, and which, if followed up, would lead to a defect in the vendor's title, and he failed to investigate before purchasing, he will not be a bona fide purchaser; or if the consideration paid for the thing purchased is so grossly inadequate as to strike the understanding of an honest and intelligent man that the sale was not in good faith, the purchase would not be bona fide. Gordon & Rankin v. Tweedy, 71 Ala. 213.

Our court, in discussing the right of subsequent purchasers to invoke the statute of registration against prior purchasers said, in the case of Center v. P. & M. Bank, 22 Ala 743: "It has been repeatedly held, and may now be considered as settled law, that if the subsequent purchaser be put in possession of such facts concerning...