Grimmer v. Nolen

HARALSON, J. S. J. Nolen, the plaintiff be»low, sued Bird McKinney and J. B. Grimmer in the justices’ court, for $75 damages, for the conversion, during the month of October, 1902, of 921 pounds of cotton, the property of the plaintiff. The justice rendered judgment against the defendant in favor of the plaintiff, and the former appealed to the circuit court, where the case was retried. Besides the general issue, the defendant Grimmer pleaded a special plea numbered 2, in substance, that after having been duly adjudged a bankrupt in the United States district court, he obtained from said .court a discharge in bankruptcy. The bill of exceptions recites that the defendant moved the court to strike this plea, on the ground that tin* discharge in bankruptcy, was no defense to the action, which was in tort for the conversion of personal property. The court, against the plaintiff’s objection, granted [469] the motion. The plaintiff is in no position to complain. That defendant moved to strike his own plea, is probably a mistake, but we. prefer to follow the record, and not put the court in error, if its ruling was erroneous, which we do not decide, on account of the mistake. On this point see the following authorities: Brandenburg on Bankruptcy, 542, $ 63; Id., p. 362, 363; 5 Cyc. 326; Call on Bankruptcy, 452, subdiv. 6. The plaintiff claimed under a note and mortgage, purported to have been executed on the 6th of February, 1902, payable to S. J. Nolen, the plaintiff, on the 1st of October, 1902, for $85. The mortgage recited the note. It read, “For value received, negotiable and payable at Alexander City, with cost of collection, including a reasonable attorney’s fee and record fees, and to secure the same and all further and additional supplies, T sell and convey to payee my entire crop of corn, cotton and everything else I raise or have, raised during the year 1902, also the. following property' which we guarantee to be in us and clear from any incumbrance, (describing a mule). If not paid at maturity, payee is authorized to take said property in possession and sell the same. for. cash at pub-his lie outcry,” etc. (Signed) “Bird X McCinney mark his (L. S.),Joe X McCinney (L, S.), Jib A. Cleveland and mark W. O. Eason.” On the back of the mortgage was a certificate of the judge of probate, that it was filed for record, February 7, 1902, and recorded the same day¡ The plaintiff offered the mortgage in evidence to which defendant objected, on the. ground that the instrument is not self-proving. W. A. Cleveland, a subscribing witness, was examined and testified, that he knew Bird and Joe McKinney; when plaintiff’s attorney showed the mortgage offered in evidence to the witness and asked him, “Did they sign that paper?” The defendant objected to said question, because the paper shown the witness was not signed by Byrd and Joe McKinney, but pur [470] ported and was in fact signed Bird and Joe Mc.Cinney. The court overruled the objection and the defendant excepted. The witness answered, that the negroes, the mortgagors, made their marks in his presence anct that of the other subscribing witnesses. The defendant contests the right of the plaintiff to recover, on the ground, that on the 18th of February, 1902, Byrd McKinney, without notice actual or constructive to defendant of a mortgage before that date given by said Byrd McKinney to the plaintiff on the same property, gave a mortgage to defendant on the property claimed by the plaintiff in his alleged prior mortgage. Plaintiff’s said alleged prior mortgage'was executed as before stated in the name of Bird McCinney and Joe McCinney, and not in the name of Byrd and Joe McKinney, and on this ground, the defendant objected to the introduction of said mortgage, which objection was overruled. In Johnson v. Wilson, 137 Ala. 468, 34 South. 392, 97 Am. St. Rep. 52, we said, that the record of a mortgage executed in the name of A. W. Dixon, constitutes no notice that J. W. Dixon, which was the real name of the mortgagor, executed the same. It was said: “It may be and doubtless is true, that the mortgage executed by J. W. Dixon is a valid conveyance inter partes but it does not follow from this, that the plaintiff who subsequently purchased it from Dixon under his true name was chargeable with constructive notice of the mortgage which Avas recorded correctly. In other words, the record of a mortgage executed in the name of A. TV. Dixon is not notice that J. W. Dixon executed it. The names are entirely different as are the names of J. W. Dixon and J. W. Smith.” On the question of idem sonans, if important to he considered, it is laid down in the article on pronunciation, in Webster’s International Dictionary, that the consonant “c” when preceding the voAvel “i” is ahvays as “s.” From an inspection of the Avords in the Century, and in Webster’s International Dictionary, Ave find that this is one of the few rules in regard to the English language, Avhich seems to be universally followed. This be [471] ing tlie case the word “McCinney” would be pronounced “McSinney” and not “McKinney.” “Conveyances of personal property, given to .secure debts, or to. provide indemnity, are inoperative against creditors and purchasers without notice, until recorded,” etc. — Code 1896, § 1009; Steiner v. Clisby, 95 Ala. 91, 10 South. 240, 11 South. 294. The plaintiff’s mortgage was not properly admitted in evidence. — Heil and Louer's Appeal, 40 Pa. 453, 80 Am. Dec. 590. The court charged the jury at the plaintiff’s request, that if (Trimmer had notice of Nolen’s mortgage at any time before the first day of October, 1902, they must, find for the plaintiff. This charge was clearly wrong. Before Nolen’s mortgage could be operation against Grimmer, it was necessary to show that he had actual or constructive notice of the same before Glimmer’s rights accrued. For the same reason, the three, charges requested by the defendant should have been given. Reversed and remanded. Dowdell, Smpsox, and Axdersox, JJ., concur.