#### Holman *v.*Ketchum.

*Trespass and Trover.*

(Decided Dec. 19, 1907.

45 South. 206.)

1. *Trover; Right of Action; Title and Possession to Sustain.*— To. maintain trover the general or special title to the property and the possession or immediate right to the possession must have been in the plaintiff at the time of the conversion.

2. *Trespass; Right of Action; Possession.*— To support trespass for the taking of chattels plaintiff must, at the time of the taking, have the actual possession or the right to immediate possession. t

3. *Chattel Mortgages; Construction; Title of Mortgagor.*— The m irtf gagor has only an equity of redemption not cognizable in a court of law and the mortgagee is invested with the title to the property mortgaged and the right of possession, unless the conveyance con-, tained a contrary stipulation.

4. *Same; Rights of Parties; Possession; Stipulations*Thereto.— Pending the maturity of the indebtedness the parties to a chattel mortgage may make such stipulations as to the possession of the property as seems to them right, and where a mortgage contains the stipulation that the mortgagee may, after or before maturity thereof and for the payment thereof, seize and sell any of the mortgaged property as the mortgagee deems best waiving all formalities, the right to ter-' minate the possession of the mortgagor is reserved to the mortgagee, to be asserted whenever he desires; and where the mortgagee seizes the property under the stipulation the mortgagor is without title, and. his right to possession and his possession is lawfully terminated.

5. *Same; Execution; Evidence; Sufficiency.-*— A fraudulent mortgage being invalid affords no protection to one taking under it so that a general finding for the planitiff, if warranted by the evidence, is supported by an affirmative finding upon the issues tendered by the plaintiff of fraudulent representations in the procurement of the mortgage.

Appeal from Dale Circuit, Court.

Heard before Hon. A. A. Evans.

Trespass and trover by R. C. Ketcham against J. D. Holman for the recovery of certain mules. From a judgment overruling a motion for a new trial, defendant appeals.

Affirmed.

R. C. Ketcham sued J. D. Holman in trespass and in trover for the taking and conversion by him of two *361mules. Holman justified under the mortgage, the contents of which are sufficiently stated in the opinion of the court. The plaintiff replied that he declined to execute a mortgage and that it was falsely represented to him by Holman that the paper he signed Avas a simple waive note. The case Avas tried on the facts tending to support the contention of both plaintiff and defendant. The trial resulted in a A7erdict for the plaintiff and defendant entered a motion for a new trial because the verdict was contrary to the laAV and the evidence. The Court denied the motion, and this appeal is prosecuted from the judgment denying the motion.

M. Sollxe, for appellant.

The verdict is contrary to law. If Holman exceeded his authority it was only because he purchased at foreclosure sale, and appellee could only affirm or disaffirm this excess of authority in a court of *equity.*— Diefenback *v. Vaughan,*116 Ala. 155; *Am. F. L. Mtg. Go. v.*Setcell, 92 Ala. 163; *McGall v.*Marsh, 89 Ala. 478. The verdict Avas contrary to the evidence as the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is Avrong and *unjust.*— Railroad *Go. v. Powers,*73 Ala. 244; *Gobb v. Malone,*92 Ala. 630; *Holland v.*Howard, 105 Ala. 538; *B-ir. Nat. Bank v. Bradley,*116 Ala. 142; *Perry v. King,*117 Ala. 535.

J. E. Acker, and H. *G.*Stegall, for appellee.

The mortgagee not having disposed of the mules in accordance Avith the poAvers of the mortgage became a trespass ab *initio.*— Brock *v. Berry Dcmoville Co.,*132 Ala. 99; *Nathan v. Shivers,*71 Ala. 121; *Johnson v. State,*140 Ala. 418.

*362McCLELLAN, J.

— The defendant’s motion for a new-trial upon the ground that the verdict Avas contrary to the laAV and evidence, or either, Avas overruled, and from that action he appeals.

The plaintiff’s case is stated in íavo counts, trespass and trover. Admitting that he took possession, without force, of the two mules in question, the defendant sought to justify his course under a mortgage to him by plaintiff. This instrument purports to have been executed on November 3, 1903, and the note AAdiich it w-as gi\ren to secure matured on September 1, 1904. The taking of the animals was on February 22, 1904. The mortgage contained the provision under which defendant assumed dominion of the mules, viz: “All or any of Avhich property the said J. D. Holman may, after or before the maturity hereof and for the payment thereof, seize and sell as they may deem best, wraiving all formalities.” To maintain trover the plaintiff must have, at the time of the alleged conversion, the title, general or special, to the property and possession or the immediate right of possession; and to support trespass for the taking of chattels he must have, at the time of the act, the actual possession or the right of immediate possession of the *property.*— Johnson *v. Wilson,*137 Ala. 468, 34 South. 392, 97 Am. St. Rep. 52. A mortgage, at lawq effects to invest the mortgagee w-ith the mortgagor’s title to the property described, and this, unless the parties otherwise stipulate, draAA-s to it the right of possession thereof. Before foreclosure there is in the mortgagor only the equity of redemption, Avliich is not cognizable in a court of *law.*— Marks *v. Robinson,*82 Ala. 69, 2 South. 292; *Stephens v. Head,*138 Ala. 455, 35 South. 565. It is within the competency of the parties to order the possession, pending the maturity of the indebtedness, as they see fit; and from the quoted provision of this mort*363gage it is clear that the right and power to terminate the contemplated possession of the mortgagor was reserved by the mortgagee, the holder of the legal title, to be asserted whenever he desired. Assuming the validity of the mortgage, the plaintiff was Avithout the title to the property, and his possession and right to the possession of the mules Aims laAvfullv terminated by the authorized act of the mortgagee in seizing them. For so doing he committed no Avrong against the plaintiff, and, if the mortgage is valid, he must have failed in this action.' See Jones on Chiattel Mortgages, 435. Under these circumstances it is evident that the crucial point in the case Avas the issue of fact Avhether, as plaintiff contended, the execution of the mortgage by the plaintiff was induced by the fraudulent representation of the defendant that the paper ivas a note, and not a mortgage, which latter plaintiff had refused to execute.— *Bank of Guntersville v.*Webb, 108 Ala. 132, 19 South. 14.

The verdict was general, and, if Avarranted by the evidence, may be supported by an affirmative finding upon the issue just stated; for, if the mortgage was thus fraudulently procured to be executed, it Avas invalid, and afforded no protection to defendant in taking or appropriating the mules. The several mortgages assigned to defendant by Stokes after the taking on February 22, 1904, could, of course, serve no purpose to justify or acquit the defendant of the wrong charged. We have carefully considered the testimony bearing upon this issue of fact; and while the weight of it appears, from the record we alone have, to be Avith the defendant, yet the preponderance is not so great as to overcome the presumption of the correctness of the jury’s finding, favored as they were Avith a vieAV of the witnesses in giving their testimony, and to convince us that the conclusion *364reached by the jury is wrong and .unjust. The judgment overruling the motion is affirmed.

Affirmed.

Tyson, C. J., and Haralson and Denson, JJ., concur.