Lowery v. Haley

• Decision Date: 06 April 1915
• Docket Number: 309
• Citation: 68 So. 539,12 Ala.App. 448
• Parties: LOWERY v. HALEY.
• Court: Alabama Court of Appeals

68 So. 539

12 Ala.App. 448

LOWERY v. HALEY.

No. 309

Court of Appeals of Alabama

April 6, 1915

Appeal from Circuit Court, Marshall County; W.W. Haralson, Judge.

Action by C.L. Haley against Joe Lowery. Judgment for the plaintiff and defendant appeals. Reversed and remanded.

Street, Isbell & Bradford, of Albertville, for appellant.

McCord & Orr, of Albertville, for appellee.

THOMAS J.

The suit was by appellee (Haley) against the appellant (Lowery) and the complaint contained two counts--one in trover for the conversion of two mules therein described, and the other in case for the destruction of a lien upon said mules.

It appeared without dispute that the only claim that the plaintiff had upon the mules was as the transferee of a certain mortgage, which had been executed upon them by one C.S. Robbins to one D.B. Robbins on March 14, 1914, and which had been transferred to the plaintiff by the said mortgagee as collateral security for a loan not due, the transfer being made, however, merely by a delivery and an indorsement in blank of the paper, which was a note followed by the mortgage securing it and forming one instrument. While such a transfer carried the equitable title to the plaintiff of the property embraced in the mortgage, it was not sufficient to convey the legal title, which was necessary, under the facts of this case, to the maintenance of the court in trover. Dumas v People's Bank, 146 Ala. 226, 40 So. 965; Graham v. Newman, 21 Ala. 497; Gafford v. Lofton, 94 Ala. 333, 10 So. 505. The court for this reason erred in refusing the affirmative charge requested by defendant as to count 1 of the complaint. Authorities supra.

There is no merit, however, in appellant's contention that he was also entitled to the affirmative charge because the suit was brought before the law day of the mortgage that had been transferred; and this for the reason that the mortgage here although it did impliedly provide that the mortgagor should have the right to the possession of the property until the law day of the mortgage, yet contained an express stipulation in effect that such right should be forfeited in the event the mortgagor should, at any time before the law day, sell the property, which, without dispute in the evidence, was done in this case, and which, under the terms of the mortgage, gave the mortgagee the right to the immediate possession of the property, and consequently the right to sue the purchaser from the mortgagor, who, without dispute, is the defendant, for a conversion of the property. Heflin v. Slay, 78 Ala. 180.

The mortgagee having the legal title and being entitled to the immediate possession of the property, as shown, the plaintiff, as his equitable assignee, might have maintained trover in the name of the mortgagee for his use, but not in his own name, since plaintiff had not, as transferee of the mortgage, acquired, as pointed out, the mortgagee's legal title to the property. Graham v. Newman, supra; Heflin v. Slay, supra; authorities supra.

As to the count in case for the destruction of a lien upon the property, it may be said that, while the plaintiff's equitable title as transferee of the...