Nolen v. Farrow

• Decision Date: 02 July 1907
• Citation: 154 Ala. 269,45 So. 183
• Parties: NOLEN v. FARROW.
• Court: Alabama Supreme Court

45 So. 183

154 Ala. 269

NOLEN v. FARROW.

Supreme Court of Alabama

July 2, 1907

Rehearing Denied Dec. 19, 1907.

Appeal from Circuit Court, Tallapoosa County; S. L. Brewer, Judge.

Detinue by G. W. Farrow against John Norrell, in which I. D. Nolen made claim to the property. From a judgment in favor of plaintiff, claimant appeals. Affirmed.

Detinue was begun by G. W. Farrow against John Norrell for one bay horse mule. I. D. Nolen came in after the levy of writ, made affidavit and gave claim bond as required by law, and the trial was had on said claim suit, resulting in a judgment for plaintiff, from which judgment this appeal is prosecuted. The facts sufficiently appear in the opinion of the court.

The following charges were refused to the claimant: (1) The general affirmative charge. "(2) The jury must credit on the mortgage the amount of cotton received by Farrow from Norrell, and if the jury find the cotton was of value as much as Farrow sold on his mortgage to Norrell before the Nolen mortgage was recorded, then the jury must find for the claimant. (3) The court charges the jury that, even if they should believe that the plaintiff had no notice of Nolen's mortgage at the time the plaintiff took his mortgage, still the plaintiff cannot recover for anything advanced by the plaintiff to Norrell after he had notice of Nolen's mortgage, or after Nolen's mortgage was recorded. (4) If the jury believe from the evidence that Farrow received from Norrell cotton covered by the mortgage on which this suit is brought, of the value of as much or more than Farrow has sold to Norrell on the mortgage before Nolen's mortgage was filed for record, then they must find for the plaintiff."

Lackey & Bridges, for appellant.

George A. Sorrell, for appellee.

HARALSON J.

Conveyances of personal property to secure debts, or to provide indemnity, are inoperative against creditors and purchasers without notice, until recorded. Code 1896, § 1009.

As to a bona fide purchaser, the rule is, "that the party pleading it must first make satisfactory proof of purchase and payment." The burden rests upon him who asserts that he is a bona fide purchaser. He need not go further, and prove he made the purchase and payment without notice. If it be desired to avoid the effect of such purchase and payment it must be met with counter proof that, before the payment the purchaser had actual or constructive notice of the equity or lien asserted, or of some fact or circumstance sufficient to put him on equity, which, if followed up, would discover the equity or incumbrance. Ely v. Pace, 139 Ala 293, 35 So. 877; Bynum v. Gold, 106 Ala. 427, 17 So 667; Hodges v. Winston, 94 Ala. 578, 10 So. 535.

For payments made by the mortgagor, before the mortgagee acquired notice of a prior lien or mortgage, the purchaser will be protected pro tanto, to the extent of such payments. Craft v. Russell, 67 Ala. 9, 12; Sewing M. Co. v. Zeigler, 58 Ala. 222; Kirby v. Raynes, 138 Ala. 198, 35 So. 118, 100 Am. St. Rep. 39.

Money received from a particular source or fund should be applied as a payment, pro tanto, to the relief of that source or fund. Darden v. Gerson, 91 Ala. 323, 9 So. 278; Strickland v. Hardie, 82 Ala. 412, 3 So. 40; Bostick v. Jacobs, 133 Ala. 347, 32 So. 136, 19 Am. St. Rep. 36.

The mortgagor, John Norrell, executed to I. D. Nolen, the claimant, on the 18th of January, 1902, a mortgage on the property claimed, and on his entire crop of corn and cotton, and everything else raised by him during 1902, to secure $71.50, and also to secure additional supplies, which mortgage was filed for record January 24, 1902, at 11 o'clock a. m., and duly recorded. This mortgage was introduced in evidence by the claimant.

The plaintiff offered in evidence, a mortgage executed by said John Norrell and wife to him on the 22d day of January, 1902 to secure a debt of $80, payable on the 1st of October, 1902, which mortgage was on the same property as the one given by said mortgagor to the claimant, and it was filed for record in the probate office on the 24th day of January, 1902, at 8 o'clock a. m.--the...