Hickey v. McDonald Bros.

ANDERSON, J.

When this case was here before (reported in 151 Ala. 497 , 44 South. 201 , 13 L. R. A. [N. S.] 413) this court held that the plaintiffs parted with the title to the mule under the sale. Consequently, on the trial from which this appeal is taken, the plaintiffs were put to their title under the mortgage given them by the purchaser at said sale. As the mortgage had not been recorded, the issue was whether or not the defendant was such a purchaser as is protected under the terms of section 3386 of the Code of 1907. “Purchasers without notice,” as mentioned in section 3386 of the Code of 1907, has been construed to mean hona fide purchasers without notice. — Morris v. Bank of Attalla, 142 Ala. 638 , 38 South. 804 ; Southern Association v. Riddle, 120 Ala. 562 , 29 South. 667 . In the Morris Base, supra, it was held that, because the consideration of the subsequent purchaser was tainted with usury, he was in no position to invoke the statute of registration against the prior purchaser, whose mortgage had not been recorded, and of which the usurious mortgagee had no notice. If, therefore, the fact that usury, constituting a part of the consideration, prevented the purchase from being bona fide, any facts put in the possession of the second purchaser, which should cause a prudent man to investigate, and which, if followed up, would lead to a defect in the vendor’s title, and he failed to investigate before purchasing, he will not be a bona fide purchaser; or if the considera *304 tion paid for the thing purchased is so grossly inadequate as to strike the understanding of an honest and intelligent man that the sale was not in good faith, the purchase would not be bona fide. — Gordon & Rankin v. Tweedy, 71 Ala. 213 .

Our court, in discussing the right of subsequent purchasers to invoke the statute of registration against prior purchasers said, in the case of Center v. P. & M. Bank, 22 Ala. 743 : “It has been repeatedly held, and may now be considered as settled law, that if the subsequent purchaser be put in possession of such facts concerning the title which the vendor offers to sell as should cause a prudent man to inquire further before he would proceed with the purchase, he will be charged with notice required by the statute; and if he still goes to complete his purchase he does so at his own peril and will not be allowed to invoke the protection of the statute of registration. * " * When a second purchaser is affected with such notice he' can acquire no equity, because it is his own folly to expend money under such circumstances; and it is not just that by such purchase he should be permitted to deprive the first purchaser of the title he has acquired by sale made to him bona fide, and on which a full and valuable consideration has been paid to the vendor. Such second sale would be fraudulent in the vendor ; and if the subsequent purchaser is, or from the circumstances surrounding him ought to be, in possession of facts sufficient to put him on his guard, he becomes particeps fraudis, and is entitled to so protection.” See, also, Smith & Co. v. Zurcher, 9 Ala.. 208. The case of Jones v. State, 113 Ala. 95 , 21 South. 229 , is not applicable to section 3386 of the Code of 1907, although cited under said section. The section there held as not pertaining to bona fide purchasers was séction 999 of the ■Code of 1896 (section 3376 of the Code of 1907).

*305 It must be observed that whether the facts put into the possession of the second purchaser would or would not, if followed up, lead to a discovery of the first purchaser’s title, yet if they are such as to put a prudent man on inquiry as to the vendor’s title, and the second purchaser consummates the sale without ascertaining that the vendor had the right to sell he cannot invoke the statute of registration against a prior bona fide purchaser, because he is not himself a bona fide purchaser, and does not come under the protection of the statute. There was evidence from which the jury could infer that the defendant was in the possession of facts that would question the vendor’s title to the mule and his right to sell the same, and which would put a prudent man upon inquiry before consummating the purchase, and which, if followed up, would disclose that the vendor did not have the right to sell the mule, whether they led to knowledge of the plaintiffs’ mortgage or not. There was evidence in this case from which the jury could have inferred that the defendant was in possession of facts sufficient to put him upon inquiry as to the title of Tilly, and which, if followed up, would have led to a discovery ' of its imperfection. Tilly was working for the defendant as a day laborer for «mall wages, was hard up, and continually overdrawing his wages. Tilly claimed to have gotten the mule from Payne under a $250 mortgage held by him. Payne was represented as living near Spring Hill, which is in the same county. In addition to this, there was the statement of the defendant, made to one of the plaintiffs, that Tilly was lying around his place trying to sell the mule, and he finally paid him $50 for a mule agreed to be worth at the time $185. The trial court did not, therefore, err in refusing the general charge requested by the defendant.

*306 Charge 3 and 5, requested by the defendant, were properly refused. They assume that the defendant was a bona fide purchaser, and instruct a finding for the defendant unless he had notice of the plaintiffs’ mortgage, or of facts which, if followed up, would lead to notice of said mortgage. As we have heretofore set out, unless the defendant was a bona fide purchaser, he could not invoke the statute of registration, and it was a question for the jury as to whether or not he was such a purchaser.

Charges 4 and 7, requested by the defendant, were properly refused. They request a finding for the defendant unless he knew of the plaintiffs’ mortgage, or of facts that would lead to notice of same, notwithstanding Tilly had a defective title. It is true these charges postulate both notice of the plaintiffs’ mortgage and the fraud in the title of “Tilly;” but they instruct a finding for the defendant unless he had notice of both, or of facts which would have led to knowledge of both, when, under the law, notice of either fact postulated would cut off his defense as against these plaintiffs.

The judgment of the circuit court is affirmed.

Affirmed.

Tyson, C. J., and Simpson, Denson, and Mayfield, JJ., concur.