Riley v. Dillon

HARALSON, J. — The action is in detinue, commenced on November 3, 1903, for the recovery of a mare. In addition to the general issue, the defendant filed eight special pleas, the second, sixth and seventh of which set up in substance, that the defendant held title to the animal from one K. Y. Smith; that Smith, who [285] was a minor, got the animal from plaintiffs, and executed to them his conditional sale-note for the sum of $80, and in and by said note the title to the said property was retained in the plaintiffs. The eighth sets np the fact of Smith’s minority, and that he gave the $80 note which represented the difference between the mare obtained from plaintiffs and a mule which said Smith let the plaintiffs have in part payment of the purchase price of the animal in question; which mule nor the proceeds thereof the plaintiffs have ever returned or offered to return to said Smith, but retain. The fifth sets np the same facts in substance as the eighth, and avers that the note was a. conditional or “retained title” note, — the eighth setting up, that it was a mortgage. Both pleas set up that Smith was a minor at the time he executed the instrument. Demurrers were interposed to these pleas and sustained. The plaintiff introduced in evidence the instrument executed by said Smith, which is set out in the tran-sript. It is in form a promissory note, payable to the plaintiffs on the 20th of October next (1903). The obligation is referred to in the instrument itself as a note, and not as a mortgage. It contains the clause: “The title to remain in said Pennell & Dillon (the plaintiffs) until this note is fully paid.” That this instrument purports on its face to be a conditional sale-note, not varied by any fact introduced in evidence, cannot he well disputed. A sale and delivery of personal property with an express stipulation that the title is to remain in the vendor until payment thereof, is a conditional sale. Summer v. Woods, 67 Ala. 142, 42 Am. Rep. 104; Fields v. Williams, 91 Ala. 504, 8 South. 808. “If the condition of payment is not fully complied with, or, is not waived, the original vendor’s rights become perfect and absolute, and he may follow the property into whosoever’s hands it is (except as provided hv section 1017 of the code of 1896), or recover its full value, and without any deduction for any partial payment made by the original vendee; at law they are all forfeited.” —Benjamin on Sales (American Notes, 7th Ed.) p. 301; Davis v. Millings, 141 Ala. 380, 37 South. 737. [286] Tbe title to tbe animal never did pass into Smith, and hence, never could have passed into tbe defendant, and plaintiffs could have recovered either from Smith,- if he had the property, or from Riley, if Smith transferred the property to him. Disaffirmance, or putting any one in statu quo, is without any application here. The transaction is as though Smith, had purchased the same outright from plaintiffs, the title being retained by them until the $80 had been paid. Giving the mule by Smith to plaintiffs in exchange of animals was nothing more nor less than a part payment of the purchase price, just as if the value of the mule had been paid in money, which the plaintiffs were under no obligation to- refund in order to maintain this suit. Infancy is a peisonal privilege, to be taken advantage of by the infant alone, and not by a stranger. Interference by a stranger, wrongdoer, or person having no- interest in the subject-matter, will not he tolerated or permitted, and the privilege not being transferí able cannot be exercised by assignees, or privies in estate.— Sharp v. Robertson's Ex'rs, 76 Ala. 346; Hooper v. Payne, 94 Ala. 225, 10 South. 431. There was no error in sustaining demurrers to the several pleas, nor in refusing the charges requested by defendant. Affirmed. Weakley, C. J., and Dowdell and Denson, JJ., concur.