McBride & McMillan v. Kyle
| Decision Date | 06 April 1922 |
| Docket Number | 8 Div. 444. |
| Citation | 92 So. 455,207 Ala. 273 |
| Parties | MCBRIDE & MCMILLAN v. KYLE. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Madison County; Ribert C. Brickell Judge.
Detinue for the recovery of a mule by Geneva Kyle against McBride & McMillan. Judgment for plaintiff, and defendants appeal. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Affirmed.
David A. Grayson, of Huntsville, for appellants.
Lanier & Pride, of Huntsville, for appellee.
Detinue instituted by appellee against appellants to recover a mule. The mule belonged to appellants. The appellee later bought the mule, for a cash consideration, on the streets of Huntsville. He claimed to be, and was by the court below held, an innocent purchaser for value and without notice
On a fraudulent order, over the forged signature of "J. H Bowers," promising to join in a mortgage to secure the purchase price, appellants delivered the mule to a darky named Lucket. One of the appellants testified that no sale of the mule was then or later made; but, to the contrary, the delivery of the mule to Lucket was for the purpose of permitting the mule to be taken by the negro to Bowers' farm, for Bowers to inspect the animal. Manifestly, the effect of this testimony by one of the appellants was to show that no sale was then consummated; that the title did not pass to Lucket or to Bowers. This testimony for appellants was contradicted by that given by appellee's witness Brooks, appellee's landlord. He testified that one of the appellants told him that "they had sold the mule to Mr. Bowers; *** that they had sold it to the negro on the order of Mr. Bowers." In view of this conflicting evidence, touching the material inquiry whether there was a sale of the mule by appellants, whether the title passed from them, it was open to the court, trying the case without jury, to find that, though thus fraudulently thereunto induced, appellants parted with the title to the mule, consummated a sale thereof either to Lucket or Bowers.
Given that finding upon the issue of fact by the trial court-a conclusion necessary to logical progress to the judgment that was accorded appellee-the principle stated and illustrated in Lightman v. Boyd, 132 Ala. 618, 32 So. 714, governs the case, and its application requires an affirmance of the judgment. If, as was evidently concluded by the trial court a sale of the mule was made prior to appellee's...
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...69 So. 964; Donahoo H. & M. Co. v. Durick, 193 Ala. 456, 465, 69 So. 545; Peoples Bank & Trust Co. v. Walthall, supra; McBride & McMillan v. Kyle, supra; Bent v. Jenkins, 112 485, 20 So. 655; Leigh Bros. v. M. & O., 58 Ala. 165. We are of opinion that the case should be retried upon the rel......
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Moore v. Long
...hand which protect the purchaser when by the sale it was intended to pass the title, though it was procured by fraud, are McBride v. Kyle, 207 Ala. 273, 92 So. 455; Hickey v. McDonald, 151 Ala. 497, 44 So. 201, L.R.A.,N.S., 413; Wilk v. Key, 117 Ala. 285, 23 So. 6; Peterson v. Steiner, 108 ......
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...on Contracts, Rev.Ed., Vol. 5, Section 1517; Hickey v. McDonald, 151 Ala. 497, 44 So. 201, 13 L.R.A.,N.S., 413; McBride & McMillan v. Kyle, 207 Ala. 273, 92 So. 455; Drake v. Nunn, 210 Ala. 136, 97 So. 211; of Contracts Vol. 2, Section 476. Cozzalino thus secured a voidable title to the tru......
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