Couch v. Holmes

ANDERSON, J. The thial court erred in refusing charge 1, requested by the plaintiff. If D. P. Mitchell OAvned the mare Avhen he executed the mortgage to the plaintiff, the plaintiff thereby acquired title to her and should have recovered in the court below. The defendant was not a purchaser, under section 1009 of the Code of 1896, notwithstanding plaintiff’s mortgage had not been recorded in Cullman county Avhen his grantor, Dr. McLarty, purchased the mare from the wife of Mitchell, if Mitchell was the owner of the mare. Under the terms of the statute the purchase must be from the OAvner when the mortgage Avas executed, or some one holding under him or Avho has authority from his to sell. The [505] evidence fails to show that Mrs. Mitchell had any authority to sell the mare. She says “that her husband, when he started off to the penitentiary, said nothing to her about talcing care of his affairs; only told her to do the best she could while he was gone; that she had no authority from him to sell the mare.” D. P. Mitchell testified “that, when he started off to the penitentiary, he did not authorize his wife to sell the mare; that he placed the mare in plaintiff’s charge; that he did tell his wife to take care of his things and do the best she could while he was gone.” The testimony failed to show authority to the wife to sell, nor could such authority be inferred therefrom. The judgment of the circuit court is reversed, and the cause is remanded. Tyson, C. J., and Dowdell and McClellan, JJ., concur.