Sanders v. Williams

• Decision Date: 16 December 1909
• Citation: 163 Ala. 451,50 So. 893
• Parties: SANDERS v. WILLIAMS.
• Court: Alabama Supreme Court

50 So. 893

163 Ala. 451

SANDERS v. WILLIAMS.

Supreme Court of Alabama

December 16, 1909

Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.

Action by Dan Williams against J. D. Sanders. From a judgment for plaintiff, defendant appeals. Affirmed.

Espy &amp Farmer, for appellant.

B. F Reid and R. D. Crawford, for appellee.

McCLELLAN J.

Action by appellee against appellant, for breach of warranty in the sale of a horse; the alleged breach consisting in the existence of an outstanding incumbrance upon the animal created by one Rolen, an original purchaser thereof from the Dothan Mule Company. The court sustained plaintiff's demurrers to pleas 2 and 3, and counsel for appellant insist in brief, that this action was error. There are no assignments of error questioning such rulings. We must, accordingly, refrain from considering them. The only errors assigned are those predicated upon the giving of the general affirmative charge for the plaintiff, and, on the other hand, its refusal to the defendant. The trial was solely upon issues made by a general traverse of the allegations of the complaint.

The character and basis of the action has been indicated. Several questions are mooted and discussed in brief for appellant; but according to our view they cannot be treated and decided on this appeal, unless it can be said that the general issue alone affected to raise the same questions of law that the rulings on the demurrers raised. The filing of these pleas (2 and 3) clearly evidence the view of counsel that the matter of defense set forth in the pleas required special assertion, and were not comprehended in the general traverse, also pleaded. Independent of any influence of this fact, we will briefly consider the inquiry that the general issue embraced the matters of defense now argued in brief for appellant.

Rolen bought the horse from the Dothan Mule Company. He paid part of the purchase money in cash, and gave a mortgage, covering the animal, to secure the balance. Rolen was an infant at the time, and had not, when this suit was instituted, attained his majority. He sold the animal to defendant; the testimony, as appears from the bill, which purports to contain all of the evidence, being entirely silent in respect to whether the sale was unconditional, or in express, implied, or otherwise, recognition of or subordination to the mortgage to the Dothan Mule Company. The defendant traded the mule to the plaintiff, warranting the freedom of the animal from incumbrance or lien. The mortgagee, under the terms of the mortgage and after its law day, demanded the horse of the plaintiff, who, to avoid seizure and sale, paid the mortgage debt. There seems not to have been, nor is there now, any contention that the registration of the mortgage was not legally effected.

It is urged for appellant that the sale of the animal by Rolen was an act of disaffirmance of the...