property. Cr. Code, § 3836. Lippman v. State, 104 Ala. 61, 16 So. 130. One can not be convicted of removing property to hinder a person who has a claim thereto, "with a knowledge of the existence thereof," in violation of Cr. Code, § 3835, in the absence of proof that he knew or had been informed of any such claim of such person to the property. Jones v. State, 21 So. 229, 113 Ala. 95. this statute (Code, § 4354) not only extend to written mortgages, liens and deeds of trust, but also extend to, and comprehend mortgages, liens and deeds of trust which are printed, or partly printed and partly written. Johnson V. State, 69 Ala. 593. Equitable liens and mortgages are within the protection of Code, § 4353, punishing the sale or removal of property on which another has a lien. Varnum or On an indictment for removing mortgaged property, it appeared that the. State, 78 Ala. 28. mortgagee's letter of instruction to de- Under Code, § 3835, making it a crime fendant's wife was to have a bale of the to remove or sell personal property with mortgaged cotton shipped to Rome, Ga., the purpose of hindering, delaying, and his verbal instruction to defendant defrauding "any person who has a claim instrument," himself was to "haul the cotton to Owen's thereto under any written Landing, and ship it to Rome." Held, with knowledge of the existence of such that the delivery of the cotton at Owen's claim, a mortgagee is such a person. May Landing, where it was destroyed by fire,. State, 22 So. 611, 115 Ala. 14. was not a delivery to the mortgagee, at The word "convey," within Code 1907, his subsequent risk. Dyer v. State, 88 § 7423, prohibiting conveyance of mortgaged personalty without Ala. 225, 7 So. 267. gagee's consent, includes a subsequent Fort v. State, 55 So. chattel mortgage. 434, 1 Ala. App. 195. on is or the mort Defenses. Where mortgaged property has been removed or sold by the morta subsegagor in violation of statute, quent payment or satisfaction of the morta criminal gage debt is no defense to prosecution for the illegal sale. Nixon v. State, 55 Ala. 120; Steed v. Knowles, 79 Ala. 446. § 137. Indictment or Information. See the title INDICTMENT AND INFORMATION. An indictment under Rev. Code, § 3705, for removing mortgaged property, need not contain any description or special mention of the mortgage. Nixon v. State, 55 Ala. 120. Transfers Included. "The statute which the judgment of conviction founded (Cr. Code, § 3836) was construed in Johnson v. State, 69 Ala. 593, 597. It was said: "The statute, by its words, embraces not only a sale, but a conveyance, of the property. The word "convey,' when applied to a disposition of personal property has the signification of "transfer;" and means the passing of title and dominion from one person to another. It is in this, its largest, sense, it is employed in this statute, intended to prohibit the mortgagor, or maker of a lien, grantor in a deed of trust, from disposing of the property, so that the security of the mortgage or lien or deed of trust would be endangered or embarrassed. The danger or embarrassment would result, not only from a sale, but from an change, a gift, or any other transfer, by which a title, not in subordination to the mortgage, lien, or deed of trust, was created, or by which the possession was changed. A word of large meaning was employed by the law maker, to prevent. State, 55 Ala. 120. evasion of the statute by the adoption of other instrumentalities than such as would have been designated by a word of more limited significance.'" Lippman v. State, 104 Ala. 61, 16 So. 130. See, also, Fort v. State, 1 Ala. App. 195, 55 So. 434. Liens Protected. The provisions of 3 Ala Dig-8 ex Instances of Indictments Held Sufficient.-An indictment, under Rev. Code, § 3705, for selling or removing mortgaged property, is not rendered defective by the alternative averment that the defendant did sell, remove, or conceal," etc. Nixon An indictment which charges that defendant "did remove, conceal, or sell a horse, the personal property" of a person named, "for the purpose of hindering, delaying, or defrauding" that person, "who had a claim to said horse, under a written instrument, to wit, a mortgage, he, the Admissibility.-An Cobb v. State, 100 said defendant, having then and there mortgagee existed. knowledge of the existence of said writ- Ala. 19, 14 So. 362. ten instrument or mortgage," is suffiindictment under ciently definite. Glenn v. State, 60 Ala. 104. Rev. Code, § 3705, for removing mortAn indictment, found before the Code gaged property, need not contain any deof 1876 became operative, charging that scription or special mention of the mortthe defendant "did remove, conceal, or gage; and, on trial of such an indictment, sell one yoke of oxen, personal property, referring to the instrument only as havfor the purpose of hindering, delaying, or ing been executed by the defendant "to defrauding C. C., who had a claim thereto the said W.," evidence of an instrument under a written mortgage, with a knowl-executed by the defendant and another to edge of the existence of such mortgage," W. is admissible. Nixon v. State, 55 Ala. is sufficient. Atwell v. State, 63 Ala. 61. 120. An indictment for selling mortgaged At the trial of an indictment, under the property which alleges that defendant, for Act of February 13, 1875, for selling mortthe purpose of defrauding prosecutor, who gaged personal property, with the intent had a lawful mortgage thereon, sold per- to defraud the mortgagee, the evidence sonal property described, defendant hav-showed that a clerk of the mortgagee, who ing at the time a knowledge of the exist- had filled in the mortgage, said to the deence of prosecutor's claim, is in the form | fendant, shortly before the mortgage was prescribed by Code 1896, p. 335, and suffi- due, that he supposed it would be all right cient. Tallent v. State, 142 Ala. 47, 38 if the latter sold the property to a third So. 841. person, provided "they got their money." Held, that defendant might show that said clerk was the apparent general agent of the mortgagee. Atwell V. State, 63 Ala. 61. Variance.-Under Code 1907, § 7423, making it an offense for any person to sell any mortgaged personalty, where an indictment charged the disposition of a number of mortgaged animals, proof, showing an unlawful disposition of one of them, was sufficient for conviction, and did not constitute a variance. Swint v. State, 3 Ala. App. 93, 57 So. 394. cows. An indictment for removing mortgaged property charged that the mortgage lien covered two cows and two calves. The mortgage purported to be given on two Held no variance, as the offspring of mortgaged animals, which born after the making of the mortgage, are subject to the lien of such incumbrance. Dyer v. State, 88 Ala. 225, 7 So. 267. See ante, "Animals and Increase," § 63. § 138. Evidence. are In a prosecution for selling mortgaged property, the mortgagee's manager was properly permitted to testify that a few days after maturity he went to defendant's house to get the property and could not find it. Martin v. State, 58 So. 83, 3 Ala. App. 90. In a prosecution for selling a mortgaged mule, evidence of possession thereof by a third person held admissible to show that defendant had parted with possession. Martin v. State, 58 So. 83, 3 Ala. App. 90. In a prosecution for disposing of mortgaged property, proof of accused's possession of the property prior to the time of disposition is essential; and so evidence thereof is admissible. Swint v. See the title CRIMINAL LAW. See State, 57 So. 394, 3 Ala. App. 93. ante, "Offenses," § 136. In a prosecution for disposing of mortVariance. See ante, "Indictment or In-gaged animals, evidence of the birth of formation," § 137. progeny of the mortgaged animals is adPresumption. On a prosecution under missible, since such progeny in subject Code, § 3835, for selling mortgaged per- to the mortgage lien. Swint v. State, 3 sonal property "for the purpose of hin- | Ala. App. 93, 57 So. 394. dering, delaying, or defrauding" the mortgagee, the fact that the sale was open, and there was no attempt at concealment, does not raise a strong presumption that no intent to hinder, delay, or defraud the With a view to showing that the defendant, in selling the mortgaged property, had no intent to defraud the mortgagee and honestly believed that the mortgagee had assented to such transfer and sale, having proved a conversation prominence to the testimony of a single had with the mortgagee's agent, by whom witness. Fountain v. State, 98 Ala. 40, 13 the mortgage was taken, with reference So. 492. to the proposed removal and sale, he should be allowed to prove facts tending to show the general authority exercised by the agent in and about the mortgagee's business, from which he might infer that the agent had authority to assent to such removal and sale, although the agent and his principle both deny such authority. Atwell v. State, 63 Ala. 61. Sufficiency.-On a trial for selling mortgaged property for the purpose of defrauding a second mortgagee, in violation of Cr. Code, § 3835, it appeared that defendant raised two bales of cotton, which there was a landlord's lien for advances made to defendant, and two mortgages. The second mortgagee took his mortgage with knowledge that the first mortgage existed, and defendant necessarily sold the property to pay the prior lienors, and by their directions, and offered the balance arising from the sale to the second mortgagee, which he refused. Held, that the evidence was insufficient to convict defendant. Conner v. State, 97 Ala. 83, 12 So. 413. Evidence held to sustain a conviction of conveying mortgaged personalty without the mortgagee's consent. Fort v. State, 55 So. 434, 1 Ala. App. 195. § 139. Trial and Review. See the title CRIMINAL LAW. Instructions. Where, on a trial for selling or removing mortgaged property in violation of Code 1896, § 4757, there was no evidence showing a sale or removal, it was error to refuse a general charge requiring the jury to acquit. Tallent. V'. State, 38 So. 841, 142 Ala. 47. On a prosecution for selling a yoke of oxen mortgaged by defendant, an instruction that if the mortgagee, at the time of taking possession of the mortgaged property, took an ox not covered by the mortgage, the presumption was that the ox was substituted for one of those covered by the mortgage, and that defendant could not be convicted of selling a yoke of oxen, as charged, is bad, as invading the province of the jury. Fountain v. State, 98 Ala. 40, 13 So. 492. VIII. PAYMENT ANCE OF CONDITION, RE- 140. Payment of Debt. See the titles PAYMENT; SUBROGATION. Medium of Payment. The mortgagor had the right, with the consent of the mortgagee, to pay the debt either with money or property, and, if made, the legal result was the same, whether made in money or property. Bloch v. Edwards, 116 Ala. 90, 22 So. 600. Application of Payment. In the absence of an agreement or direction to the contrary from the mortgagor, the mortgagee is bound to apply the proceeds of sales of mortgaged property in extinguishment of the mortgage debt. Sanders v. Knox, 57 Ala. 80. Where plaintiff, indebted to defendant on a book account and a mortgage debt, on making a payment directed defendant to apply it on the mortgage debt, defendant had no right to apply it on the book Lynn v. Bean, 141 Ala. 236, 37 On a prosecution for selling mortgaged account. property, the mortgagee testified that So. 515. March 10th, when the mortgage fell due, A mortgage executed by a husband in defendant did not have possession of said January, 1887, prior to the passage of the property (a yoke of oxen), but that he Alabama married-woman's law, conveyed There "the entire crop * did have them ten days before. * *which may be was evidence that, in the preceding De- raised by me, or in which I may have any cember, defendant had sold the oxen. interest, on the plantation * * * or any Held, that an instruction that, if defend- other place. *** All the rents due me." ant had the oxen in his possession about This money derived from such rents March 1st, he was not guilty of the sale must, in the absence of any contrary in December, was properly refused, as agreement, be applied by the mortgagees being argumentative, and giving undue toward payment of such mortgage, and not to the satisfaction of other indebted- the debt, as that is an immaterial inquiry. ness of the mortgagor. Darden v. Ger- Morrison v. Judge, 14 Ala. 182. son, 91 Ala. 323, 9 So. 278. Effect of Payment.-Payment of a debt secured by a chattel mortgage is a satisfaction of the mortgage, and extinguishes the title conveyed by it. Shiver v. Johnson, 62 Ala. 37; Frank v. Pickens, 69 Ala. 369; Pinckard & Lay . Bramlett, 51 So. 557, 165 Ala. 327; Sanders v. Knox, 57 Ala. 80, 84; Burns v. Campbell, 71 Ala. 271, 285; Askew Bros. v. Steiner, 76 Ark. 218; Hamaker v. Bynum, 137 Ala. 391, 34 So. 405. The renewal of the note does not affect the mortgage securing it, though no express understanding is made in relation to its continuance. Cullum 2'. Branch Bank, 23 Ala. 797. The renewal of the evidence of a debt is neither payment nor a discharge of the lien of a mortgage given as security for the debt. Boyd v. Beck, 29 Ala. 703. Where a chattel mortgagor performs labor for the mortgagee sufficient in value to pay the mortgage debt, under an agree"Section 1870 of the Code declares: ment that it shall be so applied, the law "The payment of a mortgage debt, whether will make the application as the labor is the mortgage is of real or personal prop- performed, and the mortgage will be diserty, divests the title passing by the mort-charged, and the title to the property regage.'" Maxwell v. Moore, 95 Ala. 166, vested in the mortgagor, whether the ap10 So. 444, 445. plication is in fact made by the holder or not. McCullars . Harkness, 21 So. 472, 113 Ala. 250. On payment of a chattel mortgage debt, the legal title to the property becomes perfect in the mortgagor, notwithstanding the mortgagee retained a bill of sale. Harrison v. Hicks, 1 Port. 423. On payment of the debt to secure which a mortgage of personal property is made, whether before or after condition broken, the property revests in the mortgagor, without redelivery, or resale, or the canceling of the mortgage. Harrison v. Hicks, 1 Port. 423. A payment of the mortgage debt after default discharges the lien of a chattel mortgage. Fontaine v. Beers, 19 Ala. 722. "Even prior to the present statute, by which payment of a mortgage debt, although after the law day, operates to reinvest the title to the property in the mortgagor, it was held in this court that payment of a chattel mortgage had that effect." McCullars v. Harkness, 113 Ala. 250. 21 So. 472, 474. See ante, "In General," § 99 (1). What Constitutes Sufficient Payment.An order for the payment of money, if accepted as a payment, is sufficient to discharge a chattel mortgage indebtedness. Harrison . Hicks, 1 Port. 423. Where the mortgagee brings detinue against the mortgagor, to recover chattels mortgaged for the payment of a debt, his right to recover can not be defeated but by showing payment of the entire debt. It is, therefore, error in the court to permit evidence of the payment of a part of The fact that a chattel mortgagee is indebted to the mortgagor in an amount equal to the mortgage debt does not discharge the mortgage in the absence of an agreement to that effect. McCullars v. Harkness, 21 So. 472, 113 Ala. 250. An issue as to the discharge of a chattel mortgage by an agreement that the proceeds of labor performed by the mortgagor should be applied thereon is not affected by the fact that the mortgagor after the agreement filed a claim for such labor as a set-off in another action between the parties. McCullars . Hark ness. 21 So. 472, 113 Ala. 250. Evidence of Payment. "The mortgagor's possession of the note and mortgage was prima facie evidence of its payment and discharge, though no entry of satisfaction was made on the margin of the record thereof." Wilkinson . Solomon, 83 Ala. 438, 3 So. 705, 706. § 141. Tender. and its payment into court discharged the mortgage, and that an instruction that plaintiff could only recover his costs was correct. Shiver v. Johnston, 62 Ala. 37. A chattel mortgagee's title is not extinguished by a tender of payment of the mortgage debt, before maturity, unless such tender is kept good. Frank v. Pickens, 69 Ala. 369; Hamaker v. Bynum, 137 Ala. 391, 34 So. 405. § 143. After Default. See ante, "Before Default," § 142. Lender before Mortgagee Takes Possession. In Maxwell v. Moore, 95 Ala. 166, 10 So. 444, it was, in an action of money brought into court, discharges the the Even at law, a tender of the debt by the mortgagor after the law day, but before seizure of or demand for the chattels, revests legal title in him. Hall & Brown Wood Working Mach. Co. v. Haley Furniture & Mfg. Co., 174 Ala. 190, 56 So. 726. Lender after Mortgagee Takes Possession. "It is very possible, as the law of mortgages is understood at this day, that a tender of the money due, if made before the mortgagor acquires the possession, after a default in the condition, may destroy the title of the mortgagee. However this may be, we find no adjudicated case which determines that a title once vested by possession and default, can be the divested by a mere tender. The case of gagor so as to enable him to maintain The weight of authority is, perhaps, that a tender of the mortgage money, made after default, and after the mort gagee has taken possession, will not ex tinguish the title of the mortgagee un der a chattel mortgage; but the question is left undecided in this case. Frank v. Pickens, 69 Ala. 369. "There are dicta in some of our early cases, and probably the weight of authority is, that a tender after default, in order to effect the extinguishment of the title of the mortgagee, must be made before he has rightfully and peaceably taken possession for the purposes of foreclosure. This question, however, has never been decided in this state, though directly presented in Frank v. Pickens, 69 Ala. 369; the disposition of that case not calling for its decision. It is not presented in this case; the replications averring that the tender was made before the mortgagees acquired possession. We shall, therefore, leave it, as it has heretofore been, undecided." Maxwell v. Moore, 95 Ala. 166, 10 So. 444, 445. § 144. Giving New Security. See ante, "Extension to or Substitution of Other Property," § 66. Effect.-A second mortgage on the same property to secure the same debt, and extending the law day, is not a discharge of the lien of the first. Boyd v. Beck, 29 Ala. 703. The lien of a mortgage on property sold by the mortgagor will be discharged, if he afterwards executes a mortgage on |