Clemmons, Powers & Co. v. Metcalf

Decision Date22 December 1910
Citation171 Ala. 101,54 So. 208
PartiesCLEMMONS, POWERS & CO. v. METCALF.
CourtAlabama Supreme Court

Appeal from Circuit Court, Geneva County; M. Sollie, Judge.

Action by Clemmons, Powers & Co. against P. M. Metcalf for the destruction of a mortgage lien on cotton. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

The substance of the testimony on which an estoppel and waiver was sought to be predicated was that Metcalf told one of the firm of Clemmons, Powers & Co. that he took a mortgage on Clemmons in the fall of 1907, embracing the crops of 1908 and that he had furnished said Clemmons between $2,000 and $3,000 with which to make the crop, and that Powers told him that Clemmons owed the company, but said nothing about a mortgage; that Powers discussed the matter on several occasions, but at no time mentioned the mortgage. Appellee also testified about two conversations with Clemmons, a member of the partnership, one of which was in the spring of 1908, at which time he tried to induce Metcalf to take up the account J. W. Clemmons owed the partnership, but said nothing about the mortgage. He also testified that in the fall, while he was buying the cotton, he had another conversation with plaintiff Clemmons, and in the conversation something was said in reference to the purchase of J. W. Clemmons' land and sale of the crops. J. W. Clemmons testified that, when he gave the mortgage to Metcalf, he told Metcalf about having given a mortgage to appellant, and that appellee asked what he was going to do about this, and he replied he expected to get it taken up by another party.

W. R Chapman and C. D. Carmichael, for appellant.

EVANS J.

On the 4th day of March, 1907, one J. W. Clemmons executed and delivered to complainants, Clemmons, Powers & Co., a mortgage upon his entire crop of cotton to be grown by him in Geneva county in the year 1908 to secure an indebtedness of $750 due October 15, 1907. In the year 1908 the said J. W. Clemmons made a crop of cotton on lands in Geneva county of which he was in possession, claiming title and ownership at the time this mortgage was executed. The mortgage was filed for record in the office of the judge of probate of Geneva county on the 23d day of March, 1907, and duly recorded. On November 27, 1907, the said J. W. Clemmons executed and delivered to defendant, P. M. Metcalf, a mortgage to secure a recited indebtedness of $2,000, upon the same cotton crop. In the fall of the year 1908 the said P. M. Metcalf bought the said cotton of the J. W. Clemmons so grown, and mortgaged and sold the said cotton, and applied the proceeds to the payment of the mortgage debt due him by said J. W. Clemmons. The said Clemmons, Powers & Co. brought this suit against the defendant for his wrongful act in thus converting said cotton to his own use. A mortgage of an unplanted crop, executed before the 1st day of January of the year in which such crop is grown, does not convey the legal title, "but it conveys an equity, which clothes the mortgagee with the right to maintain an action on the case in his own name, against any one who sells the crop thus mortgaged and receives and converts the proceeds." Leslie v. Hinson, 83 Ala. 268, 3 So. 444, and cases there cited.

It thus appears from the undisputed facts in this case, as above mentioned, that the plaintiffs were entitled to the affirmative charge asked by them, unless they are estopped from asserting their claim by their conversations...

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5 cases
  • Grandview State Bank v. Torrance
    • United States
    • Idaho Supreme Court
    • 5 Diciembre 1923
    ... ... 527; Mitchell v. Guaranty Farmers Grain & Milling ... Co., 51 Cal.App. 557, 197 P. 428; Clemmons Power & Co ... v. Metcalf, 171 Ala. 101, 54 So. 208.) ... Wm ... Healy, for ... ...
  • Shaw v. Kinney
    • United States
    • Alabama Supreme Court
    • 22 Junio 1933
    ... ... which lien may be enforced by an action on the case ... Clemmons, Powers & Co. v. Metcalf, 171 Ala. 101, 54 ... So. 208; Truss et al., Executors, v. Harvey, 120 ... ...
  • Central of Georgia Ry. Co. v. Sigma Lumber Co.
    • United States
    • Alabama Supreme Court
    • 22 Diciembre 1910
  • Metcalf v. Clemmons-Powers & Co.
    • United States
    • Alabama Supreme Court
    • 24 Mayo 1917
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