Hill v. Nelms

• Decision Date: 18 April 1889
• Citation: 86 Ala. 442,5 So. 796
• Parties: HILL v. NELMS ET AL.
• Court: Alabama Supreme Court

5 So. 796

86 Ala. 442

HILL v. NELMS ET AL.

Supreme Court of Alabama

April 18, 1889

Appeal from circuit court, Lee county; JESSE M. CARMICHAEL, Judge.

Action by Kennon & Hill, partners, (afterwards prosecuted in the name of S. H. Hill, surviving partner,) against C. W. Nelms and E. G. Nelms, to recover three horses, two mules, and a two-horse wagon, claimed under a chattel mortgage. Plaintiffs gave a statutory bond on the commencement of the suit requiring the sheriff to take the property, unless defendants gave bond, and afterwards executed a forthcoming bond, which recited that the defendants in the suit "have failed and neglected for the space of five days from the taking of said property in possession by said sheriff, to give bond and take possession of said property, as authorized by law," and was conditioned that defendants should have the property forthcoming within 30 days after judgment, if they failed in the suit. Plaintiff appeals.

W J. Samford and J. M. Chilton, for appellant.

Geo P. Harrison, Jr., for appellees.

SOMERVILLE J.

The action is one of detinue for certain specific property, the title of the plaintiffs resting on a mortgage purporting to be executed by the appellees, who were defendants in the lower court. There is evidence tending to show that a material alteration was made in the amount of the mortgage debt, by changing it from $900 to $1,000, and that the name of E. G. Nelms was added as one of the mortgagors, after the execution of the paper, and without the consent or knowledge of C. W. Nelms, also a mortgagor. The second plea of the defendant E. G. Nelms substantially averred these facts, and the court held it sufficient on demurrer.

1. It was not necessary for the plea to aver in express words that these alterations were made after delivery of the mortgage. The averment that it was done after the instrument was executed, was sufficient. This implies that it was after delivery. The execution of a conveyance ordinarily includes its signing, sealing, and delivery, or the doing of every formal thing necessary to complete or carry it into effect. 1 Rap. & L. Law Dict. 478, "Executed."

2. Nor was it necessary to aver in the plea that the alteration was made by the plaintiffs, or with their knowledge or consent. It is sufficient to state that the change was made after the execution of the paper, and without the knowledge or consent of the defendants, which imports that it was done after delivery, and consequently while in the custody and possession of the plaintiffs, who were the grantees in the instrument. The alteration appeared on the face of the paper, and was obviously so material and beneficial to the mortgagees as to be suspicious in its nature. This fact, according to the better rule, cast on the plaintiffs as holders the burden of removing the suspicion by showing that it was made by a stranger, without their knowledge or leave, or to otherwise satisfactorily explain the alteration. If made before the completion of the instrument, or with the consent of the party to be charged under it, this would be a sufficient explanation. The force of the plea is to deny prima facie the right of the plaintiffs to claim any legal right under the altered mortgage without first so explaining the suspicious fact of alteration as to rebut the implication of its having been fraudulently made. Steph. Dig. Ev. (Reynolds) pp. 119, 120, art. 89; 1 Greenl. Ev. (14th Ed.) § 564, note 1; 3 Rand. Com. Paper, § 1784; 1 Amer. & Eng. Cyclop. Law, 512, 513; Barclift v. Treece, 77 Ala. 528. The demurrer to this plea was properly overruled.

3. Where an infant, during his minority, has made a deed or mortgage, his mere failure to disaffirm the conveyance on coming of age, without some positive and clear act of affirmation, will not amount to a ratification of the conveyance. "The reason is, that by his silent acquiescence he occasions no injury to other persons, and secures no benefits or new rights to himself. There is nothing to urge him as a duty towards others to act speedily. Language, appropriate in other cases, requiring him to act within a reasonable time, would become inappropriate here. He may, therefore, after years of acquiescence, by an entry or by a conveyance of the estate to another person, disaffirm and avoid the conveyance made during his infancy." 2 Greenl. Ev. (14th Ed.) § 366, note on page 359. In such case it...