Truss v. Harvey

• Decision Date: 30 November 1898
• Citation: 24 So. 927,120 Ala. 636
• Parties: TRUSS ET AL. v. HARVEY.
• Court: Alabama Supreme Court

24 So. 927

120 Ala. 636

TRUSS ET AL. v. HARVEY.

Supreme Court of Alabama

November 30, 1898

Appeal from circuit court, St. Clair county; George E. Brewer Judge.

Action on the case by J. B. Harvey against W. W. Perkins. There was a judgment for plaintiff, and defendant appealed. Appellant having died during the pendency of the appeal, the cause was revived in the name of George M. Truss and others, as executors of his last will and testament. Affirmed.

J. F Osborn, for appellant.

S. S Pleasants and Julius W. Davidson, for appellee.

TYSON J.

On the 20th day of December, 1892, one Moor executed and delivered to Harvey, the plaintiff, a mortgage upon certain personal property therein described, and upon "all his (my) crops of corn, cotton, and all other produce he (I) may raise or cause to be raised, or that may accrue to him (me) in any legal manner, during the year 1893, and every year thereafter until this debt is fully satisfied." The debt secured by this mortgage was evidenced by a promissory note in the sum of $35, due and payable on the 1st day of May, 1893. This mortgage was recorded in the office of the probate judge of Blount county on the 5th day of January, 1893, it being the county where Moor resided and the situs of the property conveyed by it. This was an action on the case, instituted by plaintiff as mortgagee, to recover the value of a bale of cotton raised by Moor on his lands in Blount county during the year 1894, and sold by him to the defendant, Perkins, at Springville, in St. Clair county, in the month of November 1894. The validity of the mortgage as a conveyance of any interest to the mortgagee of the crops raised by Moor during the year 1894 is raised by a demurrer to the complaint, and by objections to its introduction in evidence. The main contention is that the clause "and every year thereafter until this debt is fully satisfied" is too uncertain as a conveyance of the crops raised by Moor during the year 1894. It was certainly within the capacity of the parties to make such a contract, and no special words were necessary to its creation. It is enough that it clearly appear from the mortgage that it was their intention that the crops to be raised by Moor each year after its execution should stand as a security for the debt he owed the mortgagee until paid.

When there is a debt, then any agreement or language by which the property is sufficiently identified and designated as a security for its payment will amount to a mortgage. Security is the aim-the essence-of a mortgage. The only element of the clause under consideration that is uncertain is the one relating to the existence of the debt. It may be rendered certain by parol evidence by showing that it was not "fully satisfied" when the crop of 1894 came into existence, upon the same principle that it may be shown what lands were cultivated, and the quantity and nature of the crops raised by him, during that year. "Id certum est quod certum reddi potest." Seay v. McCormick, 68 Ala. 549; Smith v. Fields, 79 Ala. 335; Ellis v. Martin, 60 Ala. 394; Driggers v. Cassady, 71 Ala. 529. In the case of Varnum v. State, 78 Ala. 29, which was a prosecution for selling or removing certain cotton for the purpose of hindering, delaying, or defrauding a named person, who was alleged to have a lawful and valid claim thereto, etc., the lower court admitted in evidence, against the objection of defendant, a mortgage executed by the defendant containing the following words of conveyance, to wit: "My entire crop, of every description, raised by me, or caused to be raised by me, annually, till this debt is paid." This court said: "It is objected to the admission in evidence of this mortgage that it was void for uncertainty in the description of the crops intended to be included in it. Whatever force there may be in this objection to the instrument on its face, this alleged uncertainty was capable of being removed, when read in the light of the circumstances surrounding the contracting parties at the time of its execution, by extraneous parol identification."

It follows from what we have said there was no error in overruling the demurrers to the complaint, and admitting the mortgage in evidence. The mortgage created an equitable interest in the plaintiff in the crop raised by Moor in 1894, attaching to the cotton when it came into existence, and may be enforced in this action against the defendant. 3 Brick. Dig. p. 661, § 399; also, Mayer v. Taylor, 69 Ala. 403.

The certificate of registration of the probate judge upon the mortgage shows that it was filed in his "office for record on the 5th day of January, 189_...