Rotten v. Collier & Co.

McCLELLAN, J. The mortgage under which the plaintiffs, Collier & Co., claimed the property sued for was in their possession at the time of suit brought. The fact that it had previously been transferred by them to a third person as collateral security for a loan of money is of no consequence. Being in their hands at the commencement of the action, the natural presumption which the law indulges, in the absence of a showing to the contrary, is that the purposes of its conditional assignment have been met, and that therefore the instrument has been re-transferred by the delivery merely or otherwise to the mortgagee; and nothing appears here to the contrary. As is said in Jones on Chattel Mortgages, p. 508, § 444: “The. mortgagee’s right of recovery is not affected by the fact that he has assigned, the mortgage as collateral security, if before suit is brought the assignee has surrendered the mortgage to him.”—Eddy v. McCall, 77 Mich. 242. It was equally of no importance that the plaintiffs, after getting possession of the property sued for under the bond given by them, upon the failure of the defendant for the statutory period to give bond, under section 2718 of the Code, sold and delivered it to a third person. It is quite true that had plaintiffs’ title been divested out of them and passed into another pending the suit by operation of law or by its own limitations, they could not recover, (Cole, Admr., v. Connelly, 16 Ala. 271); hut neither the voluntary sale of the property by them after it had come into their possession under the bond, nor the transfer by them at such time of the mortgage under which they assert title, has any such effect: they would still have the right to recover the property for, and their recovery would enure to, their vendee or assignee.—Bedford v. Penny, 65 Mich. 667; Pace v. Pierce, 49 Mo. 393, Lacey v. Giboney, 36 Mo. 320; Cobbey on Replevin, §§ 796, 814; Hanchey v. Coskrey, 81 Ala. 149. And there is every reason why this should be so under our statu [585] tory action of detinue where the bond given by either party for the possession of the property stands in the place of it, and where it is not infrequently necessary that the property should be sold pending the suit — always necessary indeed where it is of a perishable nature. These considerations serve to determine all the exceptions reserved below against the appellant, save only the action of the trial court in striking out pleas 2 and 3, filed by the defendant, because they were not sworn to. And whether that ruling was abstractly correct or not we do not propose to inquire. If erroneous, it was without injury to the defendant, for that each of the pleas presented an wholly immaterial issue, and might well have been stricken out upon that ground. The judgment of the circuit court is affirmed.