The action is for money had and received by defendant to the use of plaintiff. Plaintiff held a chattel mortgage on all the cotton raised by McCrory Bros., which was duly recorded, and upon which a balance of about $11,000 was overdue in 1913, when the defendant bought some of said mortgaged cotton from said mortgagors and sold it for his own benefit, and retained the proceeds. On this state of facts plaintiff is clearly entitled to recover from defendant the proceeds of the mortgaged cotton bought and sold by him, if plaintiff did not authorize the sale by the mortgagors, and did not waive her claim, and has not estopped herself in any way.
There is nothing in the evidence to show that the mortgagee ever expressly authorized or consented to the sale of the cotton by the mortgagors to defendant, or that he was made her agent to sell it and account for the proceeds, or that she had ever expressly authorized or consented to the sale of any of the cotton covered by her mortgage. Nor is there anything to show that plaintiff, who resided out of the state except for brief visits to Ft. Deposit, had any knowledge whatever of the conduct of the mortgagors with respect to the particular cotton bought by defendant, or any of the cotton subject to her mortgage during that or previous years.
Defendant does not claim that he was in any way misled by the conduct or declarations of plaintiff or of any person authorized to act or speak for her in the matter, and an essential element of estoppel is therefore lacking. Clemmons v. Metcalf, 171 Ala. 101, 54 So. 208.
When plaintiff placed her mortgage on record she discharged her full duty in the matter of notice to all men of the existence of her claim, and she was under no duty to prevent the mortgagors from selling the cotton to others, nor to personally warn others not to buy it, even if she had knowledge that they were about to do so. Metcalf v. Clemmons, 200 Ala. 243,76 So. 9.
Defendant's real contention, as we gather it from the record and the argument, seems to be that plaintiff's son, J. F. Hattemer, who resided at Ft. Deposit, where all these transactions occurred, and who was her agent in making the loan to McCrory Bros., and taking this mortgage security, and looking after the collection of its interest and principal, had knowledge of the facts that the mortgagors habitually stored their cotton in a local warehouse, and offered it for sale to buyers around town in the usual way — including said Hattemer himself — and in fact sold all of their season's crop in that way, without asking Hattemer's consent and without objection from him. Defendant's theory is that, by not objecting to such disposition of their cotton by the mortgagors, Hattemer impliedly consented thereto, and thereby effectually waived the mortgage lien for and on behalf of his principal, the mortgagee.
We think, however, that no such merely negative conduct on the part of Hattemer, as agent — and nothing else is shown — can support the inference that he authorized or assented to the particular sale; nor was there anything in his dealings with the mortgagors to suggest that he had made them his agents to sell the cotton in general, and account to him for the proceeds. Carrol Merc. Co. v. Folmar, 14 Ala. App. 378,70 So. 985; 11 Corp. Jur. 627.
But, if it were conceded that Hattemer's personal conduct would support an inference of his personal assent, there is nothing in the evidence which can justify the imputation of that assent to the mortgagee, whether upon the theory of imputed knowledge or implied authority.
The evidence shows, indeed, that he was the agent of the mortgagee, his mother, in making this loan, and perhaps one or two others, and that in a general way he was expected to look after the collection of the annual interest and the principal debt for her, and that he had been doing so. It does not show that he had any powers broad enough to include the power to release the mortgagee's claim to the cotton, or to authorize its sale without payment of the debt.
Nor can his knowledge of the mortgagors' course of dealing with the cotton — which was clearly not acquired in the course of his service as agent, but as a matter of merely personal and independent observation — be imputed to his principal either constructively or presumptively, in order to raise an implication that she assented to his implied consent.
We have discussed this phase of the case upon the tentative assumption that the mortgage in question was a valid instrument in the hands of the mortgagee. If it was void because of fraud in its execution — misrepresentations as to its nature and effect — as to which the testimony is sufficient to take the issue to the jury, that invalidity would be available to this defendant, and a ratification of the mortgage by the mortgagors, after defendant's rights were acquired, could not impair those rights.
But, if the mortgage was a valid instrument at the time defendant bought the cotton, then plaintiff is entitled to recover, and the refusal of plaintiff's requested instruction to that effect was error which must reverse the judgment.
Error cannot be imputed to the action *Page 615 of the trial court in denying the motion for a change of venire on the showing made.
Let the judgment be reversed, and the cause remanded for another trial in accordance with the foregoing opinion.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.