Both parties claimed title under "Newell," and the plaintiff proved a sale from Newell during the latter part of April or first of May of the lumber in question. True, this was denied by Newell, who claimed to have sold the same to the defendants the 3d of June, under a bill of sale, which seems not to have been set out in the bill of exceptions, and the witness Newell admitted, upon cross-examination, that he did not know whether the bill of sale included the lumber in question or not. The trial court committed reversible error in giving the general charge for the defendants.
If Newell sold the lumber to plaintiff, he had no right to subsequently sell it to the defendants, and it was for the jury to determine whether or not Newell had made a previous sale to the plaintiff. Shriner v. Meyer, 171 Ala. 112, 55 So. 156, Ann. Cas. 1913A, 1103; Shealy v. Edwards, 73 Ala. 175, 49 Am.Rep. 43.
The trial court also erred in not permitting the plaintiff to introduce its mortgage on all timber on certain land in connection with the proffered proof that the lumber in question came off of said land. The mortgage conveyed the legal title to the plaintiff, and matured December, 1914, before the suit was brought and would support the plaintiff's right to recover independent of the sale to it unless the defendants could show that it was not binding upon them.
The mortgage was recorded and this was constructive notice of same and should have put the defendant upon inquiry as to whether or not the lumber was made from the timber conveyed in the mortgage.
Moreover, if the mortgage was not such as to convey a legal title as against the defendants or a subsequent purchaser, for any reasons that may have been subsequently brought out, it was competent in connection with the plaintiff's proof of a sale to it of the lumber by Newell, as it was claimed that the lumber was so sold as a partial payment of the mortgage indebtedness.
The judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
MAYFIELD, SOMERVILLE, and THOMAS, JJ., concur.