Hutto & Arnold v. Garner

WALKER, P. J. The plaintiffs (appellees here) claimed the horse sued for under a mortgage executed by one NeAvsome in January, 1910. NeAvsome lived in Dale county, and, at the time the mortgage Avas executed, the horse Avas in that county. On the day of its execution, the mortgage Avas duly filed for record in the office of the judge of probate of Dale county. It Avas never recorded elseAvhere. On January 6, 1911, New-some removed the horse to Henry county, and there, on that day, traded it to the defendants. The defendants kept the horse in Henry county until the following June, Avhen they sold it to one Deal, Avho subsequently, in January, 1912, resold it to them. When the defendants made the purchase from NeAvsome in January, 1911, they Avere chargeable with notice of the mortgage by the record of it in Dale county; three months not having elapsed after the date of the removal of the mortgaged property from that county. But when Deal bought the horse in June, 1911, he was not chargéable with notice by the recording of the mortgage in Dale county, as at that time more than three months had [414] elapsed, after the removal of the horse to Henry county. In such case, a mortgage, Avhich has been recorded only in another county from which the property covered by it has been removed, “ceases to have effect after such three months against creditors or purchasers of the grantor Avithout notice.” — Code, § 8386; Malone v. Bedsole, 93 Ala. 41, 9 South. 520. The appellants claim that, by their re-purchase from Deal, they acquired as good a title as he had. In support of this claim, they invoke the rule that.a purchaser, with notice from one Avho acquired the property in good faith and without notice, is entitled to the benefits of the position of,his vendor. — Whitfield v. Riddle, 78 Ala. 99. But as was said in the opinion rendered in the case of Lockwood v. Tate, 96 Ala. 353, 11 South. 406: “An exception to this rule obtains Avhen the property is reacquired by the original party who had obtained it Avith notice of the superior equity of another. It is not necessary, for the protection of the subsequent holder in good faith, to permit such original party to shelter himself under the former’s good faith. All other persons may acquire the property from him, unburdened by the equity which was not disclosed when he became the purchaser for value and in good faith. Only one customer is removed from the market. The party who originally perpetrated the wrong will not be permitted to reap the benefit of it. If the estate becomes revested in him, the original equity will attach to it in his hands.” The exception to the general rule which is invoked, as well as the rule itself, applies under the recording acts. — 24 Am. & Eng. Ency. of Law (2d Ed.) p. 135. The defendants, having acquired the horse from Newsome under such circumstances as to render them chargeable with notice of Newsome’s previous mortgage of it, cannot be permitted to destroy the [415] effect upon themselves of that notice by selling the mortgaged property to one wbo is not chargeable with notice of the mortgage, and then reacquiring it from Mm. The law does not enable them in tMs way to gain the advantage wMch accrued to their vendee as a re-suit of his purchase without notice. The bill of exceptions states that the defendants objected to the introduction in evidence of the mortgage above referred to on the ground that there was an erasure in it which was referred to in the objection; but the bill of exceptions fails to show that there was in fact such an erasure. It is not made to appear that the objection was well founded in fact, or that the court was in error in overruling it. The court was not in error in sustaining objections to questions asked one of the defendants as to Newsome mortgaging the horse in question to 'them before he executed the mortgage under which the plaintiffs claimed. If there was such a transaction, and if evidence of it was admissible in this case, the mortgage itself was the best evidence. Under the evidence in the case, the plaintiffs were entitled to recover, and the court was not in error in giving the general affirmative charge requested in their behalf. ■Affirmed.