
    (113 So. 473)
    ALBERTVILLE TRADING CO. v. BROOKS.
    (8 Div. 424.)
    Court of Appeals of Alabama.
    June 30, 1927.
    Street, Bradford & Street, of Guntersville, for appellant.
    Joseph P. Brown, of Boaz, for appellee.
    Brief did not reach the Reporter.
   SAMFORD, J.

The husband of plaintiff, J. T. Brooks, executed to Farmers’ & Merchants’ Bank on January 3, 1920, a note and mortgage to secure an indebtedness of $287.05; the mortgage included and conveyed the two mules, the subject of this suit; this note and mortgage was due and payable October 15, 1920, dated at Boaz, in Marshall county, and recorded January 5, 1920, in Dekalb county. The mules were in the possession of J. T. Brooks at the time he executed the mortgage. On June 6, 1920, J. T. Brooks executed a note, secured by a mortgage on tbe same mules, payáble to Albertville Trading Company, for an amount stated as $150. This mortgage was recorded June 7, 1920, in Dekalb county. On June 11, 1921, J. T. Brooks executed a note and mortgage on tbe same mules to tbe National Bank of Boaz, tbe amount of this last note and mortgage being $100, wbieb represented tbe balance due on. the $287.05 note to the F. & M. Bank. Tbis mortgage was also- recorded in Dekalb county under date June 13, 1921, Tbe note and mortgage to tbe E. & M. Bank and tbe National Bank of Boaz were on October 14, 1921, for value, transferred to Mrs. M. E. Brooks, tbe plaintiff here. Tbe note and mortgage to tbe F. & M. Bank was transferred by National Bank of Boaz, successor to F. & M. Bank, and tbe note and mortgage to tbe National Bank of Boaz was transferred by it. Through these two mortgages plaintiff claims title and right of recovery. On all of tbe above mortgages there is noted at tbe bottom, “Dekalb County, Crossville, R. No. 3.” • It was shown by tbe evidence that tbe defendant seized tbe two mules described in all tbe mortgages, under a writ of detinue issued out of the circuit court of Marshall county, and after such seizure sold same and received tbe proceeds.

The right of plaintiff to recover depends, in tbe first instance, on tbe validity of her title acquired through the transfer of tbe mortgage to tbe F. & M. Bank of date January 3, 1920. It will be noted that, in so far as tbis record discloses, tbe transfer of tbe note and mortgage from F. & M. Bank to National Bank of Boaz was by delivery merely, even presuming that it was delivered and for a valuable consideration. This would operate as an equitable assignment of tbe mortgage. First National Bank v. Sproull, 105 Ala. 275, 16 So. 879. Such equitable transfer would not pass tbe legal title to tbe property described in tbe mortgage so as to authorize action in trover or trespass in tbe transferee’s name. Sanders v. Rogers, 16 Ala. App. 231, 77 So. 69; Lowery v. Haley, 12 Ala. App. 448, 68 So. 539; Graham v. Newman, 21 Ala. 497. Tbe National Bank of Boaz having only an equitable title to tbe property described in tbe mortgage, its transfer to plaintiff could carry no better or greater title than it bad. It will be noted that there is no count in tbe complaint claiming for a destruction of plaintiff’s lien.

There was no evidence of actual notice of plaintiff’s lien on tbe part of defendant, and. in order for defendant to have been charged with constructive notice, there must be proof of a compliance with section 6867 of tbe Code of 1923, requiring tbe recordation of certain instruments, etc. Tbe mortgage was executed in Marshall county and recorded in Dekalb county. There is no evidence as to the residence of tbe grantor, or wheretbe property was at tbe time of tbe execution of the mortgage. In order for tbe recordation of a paper to operate as notice, tbe statute authorizing recordation must be complied with. Code 1923, § 6860.

We may also say that tbis court is at a loss to know bow tbe trial court arrived at tbe amount of $130 as being the amount of damages. There appears no evidence of tbis amount.

Tbe question as to whether defendant was a partnership or a corporation will probably be correctly adjudicated on another trial.

For tbe errors pointed out, the judgment is reversed and tbe cause is remanded.

Reversed and-remanded.  