Winslow v. Jones
| Decision Date | 01 February 1890 |
| Citation | 88 Ala. 496,7 So. 262 |
| Parties | WINSLOW v. JONES ET AL. |
| Court | Alabama Supreme Court |
Appeal from circuit court, Butler county; JOHN P. HUBBARD, Judge.
Action by W. A. Winslow against J. C. Jones and Harvey Jones. Judgment was rendered for defendants, and plaintiff appealed.
C L. Wilkinson and Richardson & Steiner, for appellant.
Appellant as mortgagee, brings against appellees, as mortgagors, the action of detinue for the recovery of a horse. The mortgage which was of personal chattels, was executed February 11 1888, and included at that time two horses. Some months after, by request and consent of the mortgagors, both being present, one of the horses originally included in the mortgage was released therefrom, and in lieu thereof the horse now sued for was, by interlineation, substituted. The sole question presented is whether, under section 1731 of the Code, which declares, "a mortgage of personal property is not valid unless made in writing, and subscribed by the mortgagor," the mortgage is valid, and passed the title to the horse in controversy.
The general rule, that parties may alter or modify at pleasure their contract after its consummation, applies to deeds and mortgages. An insertion of other personal property in a mortgage is but a modification or alteration of the contract which is not prohibited by any rule of law, and which the parties are competent to make. In reference to alterations and interlineations in a conveyance of real estate, made in the handwriting of the grantor, BRICKELL, C.J., says in Sharpe v. Orme, 61 Ala. 263: "If it had been shown they were made after the delivery of the deed, the conclusion would be that they were made by consent, and the validity of the deed would be unaffected by them, if it were not that an attestation by witnesses, or an acknowledgment of execution before a proper officer, is essential to the valid execution of a conveyance passing the legal estate in lands." Neither attestation by witnesses, nor acknowledgment before an officer, is essential to the valid execution of a mortgage of personal property; hence the insertion of other personal property by consent of all the parties does not affect its validity. A resubscription would be a mere formal and useless ceremony. In note 1, § 568 a, 1 Greenl. Ev., the annotator remarks: "Whenever, therefore, a deed is materially altered, by consent of the parties, after its formal...
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Prigge v. Olson
...in its modified form, and it became as binding in that form as though it had been re-drafted and re-signed.' See, also, Winslow v. Jones, 88 Ala. 496, 7 So. 262. It is certain that there was a verbal lease of the land by the owner to the tenant for the year ending March 1, 1951. Appellee as......
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Polytinsky v. Wilson
... ... Since ... that time the Supreme Court has reaffirmed this rule ... Sharpe v. Orme, 61 Ala. 263: Winslow v ... Jones, 88 Ala. 496, 7 So. 262; Bright v. Mack, ... 197 Ala. 214, 72 So. 433 ... The ... rulings of the trial court were in line ... ...
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Bright v. Mack
...or by a subsequent agreement in writing, is valid as between the parties to the mortgage. Jones on Chattel Mortgages, § 71; Winslow v. Jones, 88 Ala. 496, 7 So. 262; & Co. v. Edwards, 116 Ala. 90, 22 So. 600; Averyt Drug Co. v. Ely-Robertson-Barlow Co., 69 So. 932. Our cases hold that by re......
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Pontrich v. Neimann
...Brother Parke, we think this is the true view of the case." The opinion of the Supreme Court of Alabama in the case of Winslow v. Jones, 88 Ala. 496, 7 So. 262 (1890), indicates that the proper rule of law would be to regard paper as a compliance with the statute of frauds. In that case the......