
    Hudmon Brothers v. DuBose.
    
      Trover by Mortgagee against Warehousemen.
    
    J-. Liability of warehouseman for conversion. — A warehouseman, receiving mortgaged cotton for storage, and afterwards delivering it to the holder of the_ warehouse receipt, without actual notice of the mortgagee’S'title, is no.t entitled to protection, as a bailee who restores the possession to the bailor bofoi’e notice, but is liable in trover as for aeon-version.
    . 2. Registration as constructive notice of mortgage. — The due registration^ a mortgage on a growing crop, in the county in which the lands lie, is constructive notice of its existence to a purchaser in an adioining county.
    Appeal from the Circuit Court of Lee.
    Tried before the Hon. Jesse M. Carmichael.
    This action was brought by E. P. DuBose against the appellants, to recover damages for their alleged conversion of two bales of cotton; and was commenced on the 15th April, 1881. The defendants pleaded not guilty, aim a special plea averring that they received the cotton as warehousemen, for; storage only, and delivered it up on production of their re-; ceipt, without notice of plaintiff’s right or ’claim; and issue was joined on both of these pleas. The cotton was raised in Macon county, during the year 1880, on lands cultivated by E. D. May and B. A. Roberts; and it was carried by one of them, in company with W. R. Chapman, on the 6th November, 1880, to Opelika, in Lee county, and there stored in the warehouse of the defendants, who gave a warehouse receipt for it; and they delivered it, a few days afterwards, to some third person, whose name does not appear, on his production of the receipt. The plaintiff claimed the cotton under two^4 mortgages executed to him by said May and Roberts, which were read in evidence without objection. These mortgages were given for advances to make a crop, on certain lands in Macon county; each being dated June 1st, 1880, and conveying, with other personal property, the entire crop of cotton to be raised on said lands during that year. Each of said mortgages was (July recorded in Macon county, in July, “lSSO, and the law-day of each was October 1st, 1880. The plaintiff, learning that the cotton had been carried to Opelika, went to that city on the 16th November, and made inquiry at the different warehouses; and he was informed by the defendants, after examining their books, that the cotton had been stored with them for' a few days, and that they had delivered it to a person who produce;1 their receipt to Chapman; but they declined to state the name of that person. The defendants, it is stated, had no previous acquaintance with plaintiff, never sr,-w him before, and had no actual notice of his right to claim the cotton; and it is further stated, also, that “there was no evidence showing .the indorsement in writing of said cotton receipt.-' .
    On these facts, “there being no conflict in the evidence, the court charged the jury, among other things, that the according of said mortgages in Macon county was such notice as woxdd make the defendants liable, if the jury should believe from the evidence that the cotton was raised, on the lands described, during the year 1880; although they might also believe that the defendants only received the cotton as warehousemen uu storage only, and never claimed any other .coatrol over it than as warehousemen, and never knew, as fact, during-the time they held it, that plaintiff had or made .any claim to it.” The defendants excepted to this charge, and they here assign it as error, together with the refusal of several charges asked by them.
    A. & It. B. Barnes, for appellant,
    cited Hoffman v. Garoir, 22 Wend. 318; Eobinson & Ledyard r. Marks, 82 Ala. 69; Nelson r. Tremo». 17 Ala. 216; 40 Barb. 406.
    W. I. Bamrord. contra-,
    
    cited Story on Bailments, ^ 39«; Add. Torts, vol. 1, 402, 397; Perndnter v. Kelly, 18 Ala. 716; Lee r. Matthe/m. 10 Ala. 687; Dodi/e v. Meyer, 61 Cal. 405; Oram r. Thtssell. 35.Maine, 88; Heflin & Phillips v. Play, 78 Ala. 184.
   BOMEKYILLE, J.

In Lee v. Matthews, 10 Ala. 682; s. c., 44 Amer. Dec. 498, decided as far back as 1846, the rule was settled by this court, in accordance with the English authorities, that an agent, who intermeddles with the goods of another, is guilty of a conversion, if the same act of intermeddling by his principal would, under like circumstances, have rendered the latter liable in trover. It was! said by Ormond, J., that “every act of intermeddling with, the goods of another is a conversion; and it is no answer to the true owner, that the person so receiving the goods was ignorant of his title, or that lie received them for the use or benefit of another.” The same rule is reiterated in Perminier v. Kelly, 18 Ala. 716, decided in 1851, and is fully sustained by the weight of authority. — Marks v. Robinson, 82 Ala. 69, 83.

The only exception to this rule, which our decisions have established, is stated in Nelson v. Iverson, 17 Ala. 216, the authority of which is recognized in Marks v. Robinson, supra (1886). This exception is, that the mere receiving of goods by one who restores them to his bailor, before notice that such bailor’s possession was wrongful, is not a conversiqn.

Under the above principles, the appellants were clearly guilty of a conversion, in receiving the appellee’s cotton and shipping it on his order, unless they come within the exception announced in Nelson v. Iverson, supra. It is insisted in argument, that such shipment is legally tantamount to restoring the cotton to the possession of the bailor. The rule, in our judgment, can not be construed to go this far. The exception in question only embraces the act of .restoring the thing bailed to the mere possession of the bailor — a substantial restoration of the orignal status in quo of the property. It doe_s_ not include a restoration of^ the bailoP&Jjonfimon — by_an—acl,__the_jsssenffaTjnature of jpiifiELis-in. defiance of the. ..true — owner’s title, or the', probable.-consequence of which will. be to., put-the property; beyond his reach. And such is the act of conversion here imprtecTfd the appellants. The rulings of the Circuit Court touching tl: 's point are, in our opinion, free from error.

The registration of the appellee’s mortgage on the cotton in controversy was constructive notice to the appellants of the existence of the mortgage, and as binding on them as actual notice would have been. — Mayer v. Taylor, 69 Ala. 403; s. c., 44 Amer. Rep. 522; Heflin v. Slay, 78 Ala. 180; Marks v. Robinson, 82 Ala. 69.

The judgment is affirmed.  