Ozark City Bank v. Planters' & Merchants' Bank

Decision Date24 November 1916
Docket Number4 Div. 647
Citation197 Ala. 427,73 So. 72
PartiesOZARK CITY BANK v. PLANTERS' & MERCHANTS' BANK.
CourtAlabama Supreme Court

Appeal from Circuit Court, Dale County; John R. Tyson, Special Judge.

Detinue by the Ozark City Bank against the Planters' &amp Merchants' Bank. Judgment for defendant, and plaintiff appeals. Transferred from the Court of Appeals under section 6, Acts 1911, p. 449. Reversed, and cause remanded.

J.J Speight, of Ozark, for appellant.

J.E.Z Riley, of Ozark, for appellee.

McCLELLAN J.

This is an action of detinue, instituted by the appellant against the appellee, to recover certain chattels described in the complaint. The plaintiff asserted its right to recover under a mortgage executed by J.A. Johnson to it on November 5, 1913, and duly filed for record on the same day. The successful defendant relied upon a mortgage executed to it on January 5, 1914, and duly filed for record on the same day, by "J.F. Johnson." There were two issues on the trial, both of which were concluded by the court's giving the general affirmative charge for the defendant, viz.: (a) Whether the registration of a prior mortgage on personal property purporting to have been executed by "J.A. Johnson" operated to impute constructive notice to a subsequent mortgagee of one who signed the same as "J.A. Johnson," the difference being in the middle initial only; (b) whether the true, full name of the mortgagor was "Judge Franklin Johnson."

The first inquiry is answered by the opinion in First National Bank v. Hacoda Mer. Co., 169 Ala. 476, 53 So. 802, 32 L.R.A. (N.S.) 243, Ann.Cas.1912B, 599, where it was held that a mistake in the middle initial in a truly recorded mortgage will under our statutes avert any imputation of constructive notice to a subsequent purchaser or mortgagee.

The court erred, invaded the jury's province, in concluding as a matter of law that "J.F.," and not "J.A.," were the true initials of the true name of the mortgagor. If "J.A." were the true initials of his true name, then constructive notice of the plaintiff's rights under its mortgage was to be imputed to the defendant; and the plaintiff was due to recover. If on the other hand, the true initials of the true name of the mortgagor were "J.F.," and not "J.A.," then the defendant's rights were not affected by the registration of a previous mortgage executed by "J.A. Johnson." There was evidence to the effect that this mortgagor...

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5 cases
  • Gill v. More
    • United States
    • Alabama Supreme Court
    • 14 June 1917
    ... ... Gudenrath v. City of ... Huntsville, 194 Ala. 568, 69 So. 629; 4 ... McDonald" (First National Bank of Opp v. Hacoda ... Mercantile Co., 169 Ala ... Johnson" (Ozark City Bank v. Planters' & ... Merchants' Bank, 73 ... ...
  • Ingram v. Watson
    • United States
    • Alabama Supreme Court
    • 11 May 1924
    ...defendants, and they would not be innocent mortgagees by and under their subsequent mortgage signed by Rufus Bell. Ozark, etc., v. P. & M. Bank, 197 Ala. 427, 73 So. 72; First Nat. Bank v. Hacoda, 169 Ala. 476, 53 So. 32 L. R. A. (N. S.) 243, Ann. Cas. 1912B, 599. But if Bell's true name is......
  • Scott v. Thomas
    • United States
    • Alabama Supreme Court
    • 12 June 1924
    ... ... N ... McDonald' (First National Bank of Opp v. Hacoda ... Mercantile Co., 169 Ala ... T ... Johnson' (Ozark City Bank v. Planters' & ... Merchants' Bank, 73 ... ...
  • Union Bank v. Monroe County Bank
    • United States
    • Alabama Court of Appeals
    • 28 February 1950
    ...under our statutes avert any imputation of constructive notice to a subsequent purchaser or mortgagee.' Ozark City Bank v. Planters' & Merchants Bank, 197 Ala. 427, 73 So. 72, 73. See also, First Nat. Bank of Opp v. Hacoda Mercantile Co., 169 Ala. 476. 53 So. 802, 32 L.R.A.,N.S., 243, Ann.C......
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