McCarver v. Griffin

ANDERSON, C. J. — (1-3) It is a well-settled rule of law that the offspring or increase of female animals, [636] when they come into visible existence and are endowed with independent life, rest under the same title or ownership their dam was subject to, at the time they were brought forth. “Hence it has been often held that, if the dam, at the time of parturition be under mortgage incumbrance, the offspring passes immediately under the same incumbrance.” — Meyer Bros. v. Cook, 85 Ala. 417, 5 South. 147; Gans v. McWilliams, 62 Ala. 41; Dyer v. State, 88 Ala. 225, 7 South. 267. As between mortgagor and mortgagee the offspring continues subject to the incumbrance regardless of the age and development of same. There seems to be an exception, however, in favor of a bona fide purchaser who, finding such an offspring in the possession of the mortgagor, arbiter of its own movements, and not following its dam, purchased and paid for same without actual notice of the mortgage lien. — Meyer Bros. v. Cook, supra; Jones on Chattel Mortgages, 149, 150. It would therefore seem that the registration of the mortgage of the dam would be constructive notice of the same, as to the offspring, only during the period necessary for the nurture of the latter. After the period of nurture has passed, and the offspring is separated from the mother, a purchaser in good faith for a valuable consideration acquires title free from the mortgage; that is, he would not be chargeable with the constructive notice given by the registration of the mortgage, and would acquire a good title unless he had actual notice of the mortgage on the dam, or notice of facts sufficient to put him upon inquiry which, if followed up, would disclose that the offspring in question was subject to the mortgage. (4) In the case at bar, the defendant testified as a witness, and admitted that before he bought the colt in question, Goss, the mortgagor, told him that he had raised it, and that it was from the Gilbert horse and [637] the mortgagor’s mare (the one in plaintiffs’ mortgage) ; also that McCarver told him he had a mortgage on the mortgagor’s horses. We think that this was sufficient to put the defendant on notice that the colt he bought was the offspring of a mare upon which the plaintiffs had a mortgage, and if such was the case, he was chargeable with the legal result; that is, that the mortgage included the colt. It is true he said he had a mortgage on Goss’ “horses” and did not say “mare,” but this was the use of the general collective term, and the term was broad enough to include a mare owned by Goss at the time; and at least should have excited inquiry which would have led to a discovery that the plaintiffs held a mortgage on the mother of the colt. — Packwood v. Atkinson, 79 Miss. 646, 31 South. 337. (5) Whether or not the description of an animal, in a mortgage, as “a horse” would convey “a mare” we need not determine; but it seems to be a general rule as to pleading that the word “horse” is broad enough to include, and does include, one of the female sex of the genus, and therefore “mare” is included therein. — Southern Railway Co. v. Pogue, 145 Ala. 444, 40 South. 565. We also think that when McOarver told defendant that he had a mortgage on “Goss’ horses,” he meant, in common parlance, the “mare” also, or, at least, that his use of this term was sufficient to put the defendant on inquiry as to whether or not the mortgage included the mare which was known t.o him to be the mother of the colt when he bought the latter from Goss. As the plaintiffs’ mortgage included the colt, and as the evidence does not show that the defendant was a bona fide purchaser of same without notice, the trial court erred in rendering judgment for the defendant, and the judgment of the city court is reversed; and, as this case was tried by the court without a jury, we will, [638] under the Practice Act applicable to said court, here render a judgment for the plaintiffs for the property sued for, or for its alternate value, $100, this being the judgment that should have been rendered. (6) It may be that the eighth plea was not subject to the plaintiff’s demurrer, although it set up a defense which could have been shown under the general issue; still the defendant was not entitled to a judgment upon his plea as the same was not proven, the proof showing that he had notice that the colt was subject to the plaintiff’s mortgage. Mayfield, Somerville, and Thomas, JJ., concur.