Chesser v. First Bank of Red Level , 19 Ala. App. 54 ( 1922 )

The following are the facts as found by the trial judge from the evidence:

"The plaintiff claims the mule sued for in the case under a mortgage executed on January 25, 1912, by W.W. Lunceford to the plaintiff in the sum of $315, which represents the purchase price of the mule then and there sold to the said Lunceford by the plaintiff. The said mule immediately was delivered into the possession of the said Lunceford, and was kept and retained by him and in his possession continuously thereafter until the 1st of January, 1921, when the said Lunceford made a trade with one Sowell for the cultivation of his land upon shares, and delivered the mule in question to the said Sowell, to be worked by the said Sowell under said contract, and shortly after said January 1st defendant Bank of Red Level took possession of the mule under its mortgage, and turned said mule back over to Sowell under a contract to work said mule the balance of said year, and that in May, 1921, the plaintiff in the case went to the farm of said Lunceford where said mule was being worked by Sowell, and took possession of the mule and carried it away. That the mortgage was due on January 1, 1913, and that there was paid upon said mortgage the sum of $56.37, on January 16, 1918, which was credited upon said mortgage, which is all that has been paid thereon. That four or five days after that, said mule was hitched to a wagon of the plaintiff and driven to the town of Red Level, where the defendant was doing business, and was in charge of John L. Chesser, brother of the plaintiff, and in the absence of the plaintiff, the defendant, A.B Powell, as the cashier of the First Bank of Red Level, and his son, went to the place where said mule was hitched to the wagon, and unhitched to mule from the wagon over the objection of J.L. Chesser, in charge of the mule, and took the mule out of the wagon and carried it off, and now has the possession of it upon said farm of Lunceford, and turned it over to the said Lunceford to be worked and used in cultivating the crop upon said land for the defendant bank. That the said W.W. Lunceford did on the 4th day of December, 1920, execute a mortgage to the defendant bank upon said mule and other property to secure a recited indebtedness of $5,358.96, due March 1, 1921, and said First Bank of Red Level claimed said mule and claimed the right to the possession of it under said mortgage, and took possession of said mule in the manner above indicated, under said claim of right in said mortgage. The value of the mule is found to be worth $150, and the use or hire $2.50 a month from the time it was obtained by the defendant."

Under the foregoing statement of facts, we see no escape from the conclusion that plaintiff is barred of his suit by reason of Act 1915, p. 142, approved March 5, 1915. Defendant in this action is neither the maker of the mortgage sued on, the personal representative of the mortgagor, nor does the defendant hold under the mortgagor by descent or will. Let the judgment be affirmed.

Affirmed.