Morris v. Bank of Attalla

McCLELLAN, C. J.- To a recovery in this case it was necessary for plaintiff to prove that it had, as against the. defendant, title to the cotton in question under its mortgage of January 9fch, 1902. If, as the evidence defendant offered would have shown, Massey, plaintiff’s mortgagor, had executed mortgages on this cotton prior to January 9th, 1902, which were unsatisfied at the time of the conversion and which as between Massey and defendant vested the title, legal or equitable, in the latter, their title was superior to that of plaintiff under its subsequent mortgage unless the plaintiff could claim protection against defendant’s prior mortgage as a bona fide purchaser for value without notice. This the plaintiff could not do if the debt to secure which it took the mortgage of January 9th 1902 was constituted in any part of usury: In that contingency the Bank of Attalla, the plaintiff, was not “a purchaser without no [641] tice,” nor a creditor without notice within the meaning of section 1009 of the Code. — Southern etc. Association v Riddle, 129 Ala. 562, and authorities there cited. It was therefore a material inquiry on the trial whether plaintiff’s said debt was tainted with usury, and the circuit court erred in excluding the evidence offered by the defendant to prove that it was so tainted. With this evidence in or along with it on another trial, the defendant should, of course, be allowed to prove and introduce any mortgage, prior in date to plaintiff’s mortgage, he may have had on this property at the time of the alleged conversion. We are not of opinion that Massey’s, signature by mark and attestation to the mortgage of January 1902 to plaintiff Avas invalidated by the fact that the attesting witness Avas an agent or employe of the mortgagee. Reversed and remanded. Haralson, Tyson and Denson, J.J., concurring.