White v. Kinney

• Decision Date: 26 June 1924
• Docket Number: 6 Div. 160.
• Citation: 211 Ala. 624,101 So. 426
• Parties: WHITE ET AL. v. KINNEY.
• Court: Alabama Supreme Court

101 So. 426

211 Ala. 624

WHITE ET AL. v. KINNEY.

6 Div. 160.

Supreme Court of Alabama

June 26, 1924

Rehearing Denied Oct. 9, 1924.

Appeal from Circuit Court, Cullman County; Osceola Kyle, Judge.

Bill in equity by E. C. Kinney against L. C. White and others, to enforce an equitable lien on cotton, etc. From a decree for complainant, certain respondents appeal. Reversed and remanded.

W. E James, of Cullman, and James J. Mayfield, of Montgomery, for appellants.

Brown &amp Griffith, of Cullman, for appellee.

MILLER J.

This is a bill in equity by E. C. Kinney against L. C. White, A. P White, W. A. Hendricks, and J. H. Clark. It seeks to have a mortgage given by L. C. White to E. C. Kinney, the complainant, declared and enforced by the court as an equitable lien upon four bales of cotton, and to have a receiver appointed to take charge of the cotton. The complainant brought suit in detinue against the mortgagee, L. C. White, for the four bales of cotton. A. P. White by affidavit and claim bond interposed a claim to the cotton. W. A. Hendricks was surety on his claim bond, and the cotton, before the bond was given, was stored by the sheriff in the warehouse of J. H. Clark. This bill was filed before there was any trial in the detinue suit. The parties agreed in writing in this cause, to prevent cost and the necessity for a receiver, that J. H. Clark retain the cotton in his warehouse, keep it insured, and to await the decree of the court, cost thereof to be paid out of the proceeds of the cotton.

There were no demurrers to the bill of complaint. The defendants put in issue by answer many of the material averments in the bill. The complainant examined 34 witnesses, including those recalled, and the respondents 23. There is much useless and irrelevant evidence in the cause. The court by decree, held complainant was entitled to relief; that complainant "has a lien upon the four bales of cotton, *** to secure the indebtedness evidenced by said mortgage, which said lien is superior to any claim or lien of the defendant A. P. White, or any other defendant *** and that complainant is entitled to have said four bales of cotton subjected in this suit to the satisfaction of his said lien." The court by decree also found the defendant L. C. White owed complainant $532.97, secured by the mortgage on the cotton, and directed that the cotton be sold by the register, and from the proceeds be paid the costs of this suit, the attorney's fee secured by the mortgage, the insurance and storage charges, and the indebtedness due complainant under the mortgage, and the surplus, if any, be paid to defendant L. C. White, the mortgagor. The defendants L. C. White and A. P. White each appeal from this decree, and each separately assigns it as error.

The bill alleges, and the proof shows, that on December 10, 1920, the defendant L. C. White executed to the complainant a mortgage "on all my crops of cotton, corn, and produce I may raise during the year 1921," and on other personal property. It is not disputed that the mortgagor at that time owed complainant, secured by the mortgage, the sum of $618.95, and that he still owes him a balance thereon, which is the amount found due by the court. It is also undisputed that these four bales of cotton were grown, in 1921, on land rented by him from his father, the defendant A. P. White.

The bill alleges this mortgage, for the debt it secures, is an equitable lien on these four bales of cotton. This is denied by the defendants. They claim the rent contract for the land on which the cotton was grown was not made by the mortgagor with the landlord, A. P. White, until after the execution of this mortgage; that the mortgagor had no potential interest in this land on which the cotton was raised when the mortgage was executed, and the cotton was not grown the year of its execution, so this mortgage on the cotton is void. Moring v. Helms, 210 Ala. 175, 97 So. 647; Alexander v. Garland, 209 Ala. 267, 96 So. 138; section 4894, Code 1907. On this issue there was much evidence pro and con; some witnesses testified orally and others by depositions, and the court found-in which finding of fact we concur-that when the mortgage was executed and delivered by L. C. White to the complainant, on December 10, 1920, there was then a contract or agreement between A. P. White, the owner of the land, and L. C. White, the tenant, by which L. C. White was to have the use of, and the right to occupy and cultivate, this land, during the year 1921, on which the cotton was grown. True, this contract for rent of this land was for the year 1921. It was an oral contract, and was made on or before the tenth of December, 1920, and by its terms offended the statute of frauds. It was void on its face, because by its terms it was not to be performed within one year from the making thereof. Section 4289, subd. 1, Code 1907. But the proof shows that the tenant, L. C. White, had then taken, or soon thereafter took, possession of this land under this verbal contract, with permission of the landlord, the owner, cultivated this land as he agreed during the year 1921, and delivered the four bales of cotton to the landlord in payment or part payment of the rent and advances due him by the tenant. This placed the oral agreement without the influence of the statute. Section 4289, subd. 5, Code. This part performance of the contract gave life to the agreement, and creates the relation of landlord and tenant between the parties. It operated to impart validity to an agreement otherwise void. Shakespear v. Alba, 76 Ala. 351; Martin v. Blanchett, 77 Ala. 288; Rhodes Furniture Co. v. Weeden, 108 Ala. 252, 19 So. 318.

The mortgagor by the rent contract had an interest, potential interest, in the land on which the crop was grown when he executed the mortgage, and he thereby conveyed only an equitable lien on the cotton, as the mortgage was made and delivered prior to the year in which the cotton was grown. Section 4894, Code 1907; Sellers v. Hardaway, 188 Ala. 388, 66 So. 460; Alexander v. Garland, 209 Ala. 267, 96 So. 138; Moring v. Helms, 210 Ala. 175, 97 So. 647.

The court, in its opinion, found that the evidence shows without dispute that A. P. White was the landlord of L. C. White, the mortgagor, for the year 1921, and as such landlord has a superior lien to all others for rent and advances furnished to make the crop. But the court decreed the equitable lien of complainant "as superior to any claim or lien of the defendant A. P. White upon said four bales of cotton," because A. P. White did not file an answer in the nature of a cross-bill setting up his claim and lien on this cotton requesting it to be declared and enforced by the court. We cannot concur in this part of the opinion and decree of the trial court. The complainant avers in the bill that he filed a...