Monroe Stock & Exchange Co. v. Thames

• Decision Date: 22 May 1924
• Docket Number: 1 Div. 316.
• Citation: 100 So. 348,211 Ala. 320
• Court: Alabama Supreme Court
• Parties: MONROE STOCK & EXCHANGE CO. v. THAMES.

100 So. 348

211 Ala. 320

MONROE STOCK & EXCHANGE CO. v. THAMES.

1 Div. 316.

Supreme Court of Alabama

May 22, 1924

Appeal from Circuit Court, Monroe County; John D. Leigh, Judge.

Action in detinue by the Monroe Stock & Exchange Company against E C. Thames. Judgment for defendant, and plaintiff appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Reversed and remanded.

J. D Ratcliffe, of Monroeville, for appellant.

Hybart & Hare, of Monroeville, for appellee.

GARDNER J.

Suit in detinue by appellant against appellee for the recovery of a certain mule described in the mortgage executed by defendant to the Bank of Monroeville on March 31, 1921, which mortgage was duly transferred to the plaintiff in this cause on September 24, 1921.

The defendant insists that the mortgage debt was paid by the delivery of a bale of cotton, the proceeds of which he testified he instructed should go in payment of the mortgage debt, and further that, even if no instructions were given the cotton having been property embraced within the mortgage its proceeds should be applied as a matter of law upon such indebtedness. The defendant was due the plaintiff $70 on open account for fertilizer, and the proceeds of this bale of cotton were credited on the open account.

The issues of fact thus presented were referred to the jury, resulting in a verdict for the defendant, and from the judgment following the plaintiff has prosecuted this appeal .

The evidence of the plaintiff was to the effect that at the time the mortgage in question was assigned to it there was due thereon the sum of $96.58, and the defendant was due the plaintiff $70 for fertilizer. The bale of cotton was brought to the warehouse of the plaintiff, and receipted by the plaintiff "for J. K. Kyser." Kyser was both president of the plaintiff corporation and also president of the bank. Plaintiff's testimony further tends to show that the defendant gave no directions whatever as to the application of the proceeds of this cotton. Kyser testified the defendant told him that he wanted to let him have the cotton and take care of both the debts. The only evidence in the record as to the origin of this particular bale of cotton is the statement by defendant that he raised this bale of cotton.

The court below in its oral charge instructed the jury in substance that, if they were satisfied that the defendant raised this cotton on lands owned or rented by him, then as a matter of law the proceeds from that bale of cotton would necessarily have to be applied to this mortgage debt. Exception was duly reserved to this portion of the oral charge. We are of the opinion the instruction was erroneous.

It is a well-understood rule in this state that the proceeds of mortgaged property, or of property charged with a lien, must be applied to the debt secured, unless there be an agreement to the contrary. Pearce v. Mills, 190 Ala. 616, 67 So. 581; Pearce v. Walker, 103 Ala. 250, 15...