Pollak v. Davidson

• Decision Date: 18 June 1889
• Citation: 87 Ala. 551,6 So. 312
• Parties: POLLAK v. DAVIDSON.
• Court: Alabama Supreme Court

6 So. 312

87 Ala. 551

POLLAK v. DAVIDSON.

Supreme Court of Alabama

June 18, 1889

Appeal from circuit court, Montgomery county; JOHN P. HUBBARD Judge.

Trover by T. Davidson against one Pollak, doing business as Pollak &amp Co., for mules on which plaintiff had a mortgage alleged to be prior to a mortgage given to defendant. Verdict and judgment for plaintiff, and defendant appeals.

Tompkins, London & Troy, for appellant.

E P. Morrissett and Watts & Son, for appellee.

CLOPTON J.

Both parties deduce title to the mules, for the conversion of which appellee sues, from successive mortgages executed by a common mortgagor,-the first about January 13, 1885, to J. & T. Davidson, of which firm appellee is the surviving partner; and the other, December 15, 1886, to Pollak & Co., of which appellant is the sole member. No question arises as to the claim of defendant to protection as a bona fide purchaser for a valuable consideration, if he took his mortgage without notice of the prior mortgage. The contestation between the parties is which mortgagee has the superior lien, and notice is the pivotal question.

So far as shown by the record, plaintiff asked only two charges, both in relation to implied notice. The first is, substantially, that whatever is sufficient to put a party upon inquiry is sufficient to charge him with notice, and whenever a person making a purchase or taking a mortgage has such information as would put a prudent man on inquiry, and inquiry would lead to knowledge of an adverse prior claim, it is his own folly if he does not act on the information, and make inquiry; and he can claim no protection against a prior mortgage or other incumbrance of which he would have been informed if diligent inquiry had been made. The correctness of the legal proposition of the charge is not controverted; but it is specially objected that there is no evidence on which to predicate it. If the objection be well founded, the charge should have been refused. The court should carefully avoid giving instructions unsupported by any evidence; their tendency being to mislead the jury, and withdraw their consideration from the material and real issues. But, having been given, it does not authorize a reversal, unless it is apparent that the jury were misled to the prejudice of appellant. We have substantially stated the charge at length for the purpose of considering, in connection with it, qualifying instructions asked by defendant, based on the want of evidence tending to prove the fundamental hypothetical fact stated therein,-information such as would put a prudent man on inquiry.

The qualifying charges are: First. That the only evidence of any notice to the defendant of plaintiff's mortgage is the evidence of the mortgagor; and, unless the jury are satisfied from all the evidence that the mortgagor did give the counsel of defendant such notice, they must find that defendant had no such notice. Second. Under the facts of this case the jury cannot find for plaintiff, unless they are satisfied from the evidence that defendant or his attorney, at the time of the execution of the mortgage, had actual notice of plaintiff's mortgage; and the burden of showing that defendant had notice is on plaintiff. The effect of the first charge is to call on the court to say there is no evidence that defendant had notice or information, or notice of any facts sufficient to put him on inquiry, as supposed in the foregoing charge, given at the instance of the plaintiff, and no evidence of actual or constructive notice other than that of the mortgagor that he gave information of the prior mortgage to the attorney of defendant; and thus to narrow the inquiry to this question of fact, as to which the evidence was conflicting. The proposition of the second charge is that, there being a want of evidence of constructive or implied notice, actual notice to defendant or to his attorney is essential to plaintiff's recovery. Whether or not the qualifying instructions should have been given depends on the state of the proof, as shown by the record, and the tendencies of the evidence.

It is contended by appellee, in the first place, that there was constructive notice by the registration of the mortgage. All the mules, except three, were, at the date of the conveyance under which plaintiff claims, in the county of Bullock. The three excepted were at that time in Montgomery county, but about the first of 1886 were removed to Bullock county, where all the mules remained and were at the time of the execution of defendant's mortgage. The mortgage to J. & T. Davidson was recorded only in Montgomery county. By the statutes conveyances of personal property to secure debts must be recorded both in the county in which the grantor resides, and in the county where the property is at the date of the conveyance; and, if removed to another county, it must be recorded, within six months from such removal, in the county to which the property is removed. As against creditors and purchasers without notice such conveyances take effect from the date of registration; and, when the property is removed to a different county from that in which the grantor resides, they cease to have effect thereafter, unless recorded in such county within six months from the removal. The fact that the mules, originally in Bullock county, were sometimes brought during the day to work on a plantation in Montgomery county, and carried back at night, where they were kept all the time, did not operate to change the situs of the property as it was at the date of the conveyance. In order that registration may operate as constructive notice, it must be made in substantial conformity to the statutory requirements. The omission to have the mortgage recorded in Bullock county destroys the effect of its registration in Montgomery county, as constructive notice. Code 1886, §§1806-1814; Sanders v. Knox, 57 Ala. 80; Hardaway v. Semmes, 38 Ala. 657.

The only witness examined in reference to actual notice is the mortgagor, introduced by plaintiff, who testified that he had no recollection of ever having told defendant at any time about plaintiff's mortgage, and that his transactions touching the execution of defendant's mortgage were with his attorney. It will not be seriously contended that any inference of...