Johnson v. Wilson & Co.

• Decision Date: 19 May 1903
• Court: Alabama Supreme Court
• Parties: JOHNSON v. WILSON & CO.

34 So. 392

137 Ala. 468

JOHNSON v. WILSON & CO.

Supreme Court of Alabama

May 19, 1903

Appeal from Circuit Court, Colbert County; Ed. B. Almon, Judge.

Action by Wilson & Co., a partnership, against Richard Johnson. Judgment for plaintiffs. Defendant appeals. Reversed.

The complaint contained four counts. Two were in trover, and sought to recover for the unlawful and wrongful conversion of cotton, a mule, and some cattle. The other two were in trespass, and sought to recover for the alleged wrongful taking by the defendant of cotton, a mule, and some cattle alleged to have been the property of the plaintiff. The defendant pleaded the general issue, and, by special pleas set up that he had a mortgage on the property sued for, which was executed to him by J. W. Dixon under the name of A. W Dixon, which mortgage had been duly executed and recorded before said J. W. Dixon executed his mortgage to the plaintiffs, under which the plaintiffs claim.

Kirk Carmichael & Rather, for appellant.

W. H. Key, for appellees.

TYSON J.

The complaint contains four counts--two of them in trover, and two in trespass. To support the counts in trover, the right of property, general or special, and possession, or an immediate right of possession, must concur in the plaintiff at the time of the conversion. Corbitt v. Reynolds, 68 Ala. 378; Elmore v. Simon, 67 Ala. 526; Booker v. Jones' Adm'x, 55 Ala. 266. So, too, in order to maintain trespass for the taking of personal property, the plaintiff must show that he had at the time of the taking the actual possession of it, or the right of immediate possession. Cook v. Thornton, 109 Ala. 523, 20 So. 14.

The mortgages upon which the plaintiffs relied as the source of their title, and upon which they predicate their right to the possession of the property, were made to secure the payment of two promissory notes, each payable on the 1st day of November, 1901. By their terms the right of the plaintiffs to take possession of the property was postponed until the maturity of the notes. This being true, the plaintiffs cannot maintain this action for the conversion or taking of property by defendant before the law day of the mortgage. Elmore v. Simon, supra; Fields v. Copeland, 121 Ala. 644, 26 So. 491. And unquestionably the burden was upon the plaintiffs to show that the conversion or taking occurred after their right accrued to take possession under the mortgages. In other words, they must establish their right of possession of the property at the time it was converted or taken by defendant. This they utterly failed to do. It is true, it was shown that a portion of the cotton alleged to have been converted or taken by defendant was received by him in November, but on what day of that month is not shown. Non constat it was received by him on the first day. Ala. Min. Land Co. v. State, 126 Ala. 90, 28 So. 668. If so, the mortgagor had not made default, since he was entitled to the whole of that day in which to discharge his debt. So, then, the plaintiffs having failed to discharge the burden of proof that was upon them, the defendant was entitled to have the affirmative charge requested by him given; and this, too, without regard to which of them had the best claim to the property.

It may be that upon another trial the plaintiffs may prove the conversion or taking by defendant of some of the property after the law day of their mortgages. In that event the contest will be as to which of them has the superior title to the property. Both claim to have derived their title from one J. W. Dixon, and both by virtue of mortgages executed by him. The defendant acquired his mortgage on December 10, 1900, which was filed for record on the 14th day of the same month. The signature to that mortgage is "A. W. Dixon," although it was in fact executed by J. W. The plaintiffs' mortgages were executed in the spring of 1901, and executed by Dixon in his true name. It is not contended that the plaintiffs had actual notice of the defendant's mortgage, or that they are not purchasers for value. The question is, are they chargeable with constructive notice of the mortgage held by defendant, by reason...