Sellers & Orum Co. v. Hardaway

• Decision Date: 07 November 1914
• Docket Number: 135
• Citation: 188 Ala. 388,66 So. 460
• Court: Alabama Supreme Court
• Parties: SELLERS & ORUM CO. v. HARDAWAY et al.

66 So. 460

188 Ala. 388

SELLERS & ORUM CO. v. HARDAWAY et al.

No. 135

Supreme Court of Alabama

November 7, 1914

Appeal from City Court of Montgomery; Gaston Gunter, Judge.

Action by the Sellers & Orum Company against J.H. Hardaway and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Weil Stakely & Vardaman, of Montgomery, for appellant.

Walton H. Hill, of Montgomery, for appellees.

McCLELLAN J.

Repeated decisions in this court have established the doctrine that it is essential to the effectual creation of a mortgage on crops to be grown--

"that its subject-matter should have a potential existence, as distinguished from a mere possibility, or expectancy on the part of the contracting parties, that it will come into being. While the thing itself need not have identity, or separate entity, yet it must at least be the product, or growth, or increase of property, which has at the time a corporeal existence, and in which the mortgagor has a present interest, not a mere belief, hope, or expectation that he will in future acquire such an interest." Paden v. Bellenger, 87 Ala. 575, 6 So. 351; Burns v. Campbell, 71 Ala. 271, 288; Windham &amp Co. v. Stephenson & Alexander, 156 Ala. 341, 47 So. 280 19 L.R.A. (N.S.) 910, 130 Am.St.Rep. 102.

This is an action by the assignee of a mortgagor against the purchaser of cotton from a tenant, and grounds the complaint upon the destruction of the asserted lien of the mortgagor the instrument having been, previous to the purchase, seasonably recorded in the county wherein the wrong alleged was committed. The contention of the defendants is that at the time the mortgage in question was executed the mortgagor had no such interest in the lands mentioned therein as could render the subject of mortgage the crops to be grown thereon. The court below approved this contention, which conclusion cast the result against the plaintiffs (appellants). Our view is that the ruling of the trial court was well made. The evidence bearing on his inquiry is as follows:

James McBride, witness for the plaintiff, being duly sworn, testified as follows:

"My name is James McBride, and I reside in Elmore county, Ala., on a part of what is known as the 'Smith Place' in Elmore county, Ala. I lived on this same land during the year 1912 and worked said land on shares with one Robert Wilson, who rented said lands from Mr. Smith, the owner of said Smith Place. Some time in December, 1912, I went to said Robert Wilson who had rented said lands for the year 1913 from said Mr. Smith, and I told said Robert Wilson that I wanted to subrent from him for the year 1913 the lands that I had been working on shares with him for the year 1912. He told me that he would subrent me said lands if I would furnish a mule and make arrangements with some one for advances to make my crop for the year 1913. I then secured a mule, and on the 27th day of December, 1912, executed to C.E. Goodman, for the purpose of securing advances to make my crop for the year 1913, the following described note and mortgage hereinafter set out. *** The mule named in said mortgage was the mule which I had secured to work my crops for the year 1913. At the time said

...