(78 South. 643)

#### BUTLER COTTON OIL CO. v. G. H. CAMPBELL *&*SON.

(8 Div. 545.)

(Court of Appeals of Alabama.

May 7, 1918.)

1. Appeal and Error <&wkey;1047(4) — Harmless Error — Evidence—Admissibility.

In trover, wherein plaintiff claimed title ■under a mortgage the court will not be put in error for permitting proof of the execution of the mortgage by the mortgagor, before the paper was produced, when the mortgage was immediately thereafter produced,, identified, and introduced in evidence.

2. Trover and Conversion <&wkey;l(> — Essentials.

To maintain trover, plaintiff must, at time of the conversion, have titlet general or special, to the property, arid the immediate right of possession.

3. Chattel Mortgages &wkey;>177(l) — Rights oe Second Mortgagees — Trover.

A second mortgagee of chattels has a mere lien, as against a prior mortgagee, which will not support an. action of trover against the prior mortgagee and those holding under him.

4. Chattel Mortgages &wkey;*177(l) — Legal Title op Mortgagor — Trover.

As to all the world except the mortgagee, the mortgagor holds the legal title upon which, as against a third person,- he can maintain either trespass or trover.

5. Chattel Mortgages &wkey;>229(l) — Rights of Mortgagees — Purchasers—Tro ver .

In a suit by a second mortgagee against a purchaser, for the conversion of chattels embraced in the mortgage, such purchaser, in order to successfully plead a prior mortgage as a defense, must connect himself with the prior mortgage.

6. Contracts <S^94(5) — Fraud—Failure to Read.

When the execution of a written instrument is obtained by misrepresentation of its contents, and a party is induced by such fraud to sign an instrument he did not know he was signing and which he did not really intend to sign, he can avoid the effect of his signature, because of the fraud practiced upon him, notwithstanding he may have neglected to read the instrument or to have it read to him.

7. Contracts <&wkey;94(8) — “Fraud”—Suppression of Facts.

In order for mere silence to constitute “fraud” in procuring execution of an instrument, there must be an intentional concealment, not merely accidental, and a suppression of facts which good faith requires the party to disclose.

(Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Fraud.]

8. Contracts &wkey;94(5) — “Fraud”—EVilure to Read.

When one signs a paper at the instance of another, which the party signing could read and which he had an opportunity of reading and was not fraudulently prevented from reading, there is not, in a legal sense, such a fraud as would vitiate the instrument on the grounds of misrepresentation of its contents, when he fails to read it.

9. Principal and Agent &wkey;>24 — Creation of Agency — Questions for Jury.

In trover to recover cotton brought by the second mortgagee against a purchaser from the mortgagor, it was for the jury to say whether the first mortgagee had constituted the mortgagor his agent to sell the cotton.

10. Trial <&wkey;253(5) — Instructions Ignoring Issues — Contracts.

In trover by second mortgagee against purchaser from the mortgagor, requested instruction that if the mortgagor signed the second mortgage under the honest belief that he was signing a note, after- having told the second mortgagee that he would not sign a mortgage, verdict should be for the defendant was bad, as omitting any element of fraud in obtaining the signature.

Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.

Action by G. I-I. Campbell & Sou against the Butler Cotton Oil Company, for .conversion of cotton. Judgment for plaintiff, and defendant appeals.

Affirmed.

The following charges were refused to defendant :

(2) The court charges the jury that if Bruce directed Frazier to sell the cotton and. cotton seed, and bring the proceeds back, and they would settle, then your vez-dict should be for defendant.

(3) If the jury believe that at the time the cotton and cotton seed were sold, Bruce held a mortgage on same, any part of which had been unpaid, and this mortgage was prior to plaintiff’s mortgage, then your verdict should be for defendant.

(4) If the witness Frazier signed the mortgage izndcr the honest belief that he was signing a note, and not a mortgage, and before signing it told Campbell he would not sign a mortgage, then your vei-dict should be for defendant.

McCord & Orr, of Albertville, for appellant. A. E. Hawkins, of Albertville, for appellee.

SAMFORD, J.

[1] The plaintiff claimed title by virtue of a mortgage which he claimed was given by one Ekazier. It was therefore competent to prove the execution of the mortgage by Frazier and the amount due on the mortgage, and the court will not be put in *error for*pez-mitting this proof before the production of the paper, where the mortgage is immediately produced, identified, and introduced in evidence.

*\2]***It is undoubtedly the law in this state that to maintain trover, the plaintiff must have, at the time of the conversion, the title, general or special, to the property, and the immediate right of possession. Holnan v. Ketchum, 153 Ala. 360, 45 South. 206; Johnson v. Wilson, 137 Ala. 468, 34 South. 392, 97 Am. St. Rep. 52; Baker v. Patterson, 171 Ala. 88, 55 South. 135; Chapman v. Metcalf, 165 Ala. 567, 51 South. 745.

[3] It is also a general rule that a second mortgage of chattels has a mere lieu, as against a prior mortgage, which will not support an action of trover as against the prior mortgagee, and those holding under him. Baker v. Patterson, supra.

[4, 5] But it is also the law that as to all the world, except the mortgagee, the mortgagor holds the legal title to the property, upon which, as against a third person, he can maintain either trespass or trover. And in a suit by a second mortgagee against a purchaser for the coziversion of chattels embraced in the mortgage, such purchaser, in *446order to successfully plead a prior mortgage as a defense, must connect himself with the prior mortgage. Marks v. Robinson & Ledyard, 82 Ala. 69, 2 South. 292; Henderson & Rainer v. Murphree, 124 Ala. 223, 27 South. 405; Denby v. Mellgrew, 58 Ala. 147; Scott v. Ware, 65 Ala. 174. The court in its oral charge clearly stated this rule, and submitted to the jury the question as to whether the defendant had connected itself with the title of the first mortgage, the plaintiff claiming under a second mortgage. Under the evidence, this was a question for the jury, and the court in its various rulings on this point, including the refusal of the affirmative charge as requested by defendant, was not in error. •

[6] The next question presented is the defendant’s contention that the mortgage to plaintiff was obtained by fraud. “When the execution of a written instrument is obtained by misrepresentation of its contents, and a party is induced by such fraud to sign an instrument he did not know he was signing, and which he did not really intend to sign, •the party so defrauded can avoid the effect of his signature, because of the fraud practiced upon him, notwithstanding he may have neglected to read the instrument, or to have it read to him.” Leonard v. Roebuck, 152 Ala. 312, 44 South. 390; Beck v. Houppert, 104 Ala. 503, 16 South. 522, 53 Am. St. Rep. 77; Bank of Guntersville v. Webb, 108 Ala. 137, 19 South. 14; Tillis v. Austin, 117 Ala. 262, 22 South. 975.

[7] But in order for' mere silence to con-stitute fraud, there must be an intentional concealment, not merely accidental; there must be a suppression of facts which good faith required the party to disclose. Griel v. Lomax, 89 Ala. 420, 6 South. 741; Van Arsdale & Co. v. Howard, 5 Ala. 596.

[8] And when one signs a paper at the instance of another, which the party signing could read and which he had an opportunity of reading and was not fraudulently prevented from reading, there is not in a legal sense such a fraud as would vitiate the instrument on the grounds of misrepresentation of its contents. Dunham Lbr. Co. v. Holt, 123 Ala. 336, 26 South. 663. The evidence for the defendant in this ease tended to prove the obtaining of the signature of the mortgagee by fraudulent misrepresentations, while the plaintiff’s evidence was directly to the contrary. This made it a jury question, and the several rulings of the court on this question were without error.

[9] Charge No. 2, requested by'defendant, was properly refused. It was for the jury to say whether the first mortgagee had constituted the mortgagor his agent to sell the cotton.

Charge No. 3 was an effort to set up a title superior to plaintiff in a third party without connecting the defendant with it, which under the authorities cited above could not be done.

[1 Oj Charge No. 4 is bad, in that it omits any element of fraud on the part of plaintiff on obtaining his signature to the note.

The several rulings of the court on the admission of evidence were either without error or without injury to the defendant.

There is no error in the record, and the judgment is affirmed.

Affirmed.