J.H. Davis & Co. v. Thomas

• Court: Alabama Supreme Court
• Writing for the Court: DENSON, J.
• Citation: J.H. Davis & Co. v. Thomas, 45 So. 897, 154 Ala. 279 (Ala. 1908)
• Decision Date: 15 February 1908
• Parties: J. H. DAVIS & CO. v. THOMAS.

45 So. 897

154 Ala. 279

J. H. DAVIS & CO. v. THOMAS.

Supreme Court of Alabama

February 15, 1908

Appeal from Circuit Court, Dale County; A. A. Evans, Judge.

Action by J. H. Davis & Co. against F. A. Thomas. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

M Sollie and O. C. Doster, Jr., for appellant.

O. C Doster and J. C. Acker, for appellee.

DENSON J.

This is an action of detinue to recover a horse. The plaintiff acquired title to the horse by virtue of a mortgage executed to him on the 9th day of February, 1905, at Enterprise, in Coffee county, by one J. W. Knighten. The law day of the mortgage was October 1, 1905, and suit was commenced after that date. The evidence shows without conflict that at the time the mortgage was executed Knighten was not only domiciled at Coffee Springs, in Geneva county, but was a resident citizen of that county. It is further shown without conflict in the evidence that Knighten owned the horse and kept him at his home in Geneva county, and never kept him in Coffee county; that on the occasion when the mortgage was executed he was at Enterprise, with his horse and buggy whither he had driven, the day previous, from Coffee Springs--the horse being placed at a livery stable to be cared for; that on the day of the execution of the mortgage the plaintiff sold Knighten some live stock and a buggy on time, and to secure payment of the debt took the mortgage above described, covering the property sold, some land, and the horse in controversy. The mortgage was duly filed for record in the office of the judge of probate of Geneva county on February 11, 1905, but was not filed for record in any other county. After the mortgage was executed, and on the same day, Knighten returned to Coffee Springs, where he resided until some time in the following spring, when he removed to Pinckard, in Dale county, carrying with him the horse. The defendant purchased the horse from one Dowling, in Dale county, on the 24th day of April, 1905, paying value therefor, and without actual notice of the mortgage. He testified that he knew Knighten brought the horse to Pinckard, but did not know where he came from, nor "how he came by the horse." The evidence without conflict shows that there is a large amount yet due on the mortgage indebtedness, and that the horse was in defendant's possession when the suit was commenced. The value of the horse was also shown.

The defendant, having purchased the horse before the time allowed by the statute within which the mortgage might have been recorded in Dale county, cannot claim the benefit of the doctrine of innocent purchaser without notice, unless his contention that the mortgage should have been recorded also in Coffee county, to make it effective as constructive notice, can be maintained. Code 1896, § 999; Malone v Bedsole, 93 Ala. 41,...