Avondale Mills v. Abbott Bros.

• Decision Date: 01 April 1926
• Docket Number: 7 Div. 640
• Citation: 108 So. 31,214 Ala. 368
• Parties: AVONDALE MILLS v. ABBOTT BROS.
• Court: Alabama Supreme Court

108 So. 31

214 Ala. 368

AVONDALE MILLS v. ABBOTT BROS.

7 Div. 640

Supreme Court of Alabama

April 1, 1926

Appeal from Circuit Court, St. Clair County; Woodson J. Martin Judge.

Action by Abbott Bros. against the Avondale Mills for conversion and destruction of a lien upon cotton. From a judgment for plaintiffs, defendant appeals. Transferred from the Court of Appeals under Code 1923, § 7326. Reversed and remanded.

M.M Smith and Frank B. Embry, both of Pell City, for appellant.

Starnes & Starnes, of Pell City, for appellee.

THOMAS J.

The trial was before the court without a jury and on evidence given ore tenus. The judgment was for plaintiff.

The evidence fails to show that, when defendant purchased the cotton from a third person, it had any knowledge, or facts calling for inquiry, of plaintiff's mortgage lien. The mortgagor was not connected with the sale, having delivered the cotton to the agent of the bank, who sold the same and credited the proceeds to the debt of the mortgagor to the bank.

A mortgage, to be constructive notice as to third persons, must so describe the property that such persons, from the description itself or from the inquiries suggested by the instrument, will be able to ascertain the property covered thereby or that was intended by the parties thereto to be covered. For example, crops raised by a mortgagor for the designated year and thereafter until the debt was paid was held a sufficient description in Truss v. Harvey, 24 So. 927, 120 Ala. 636, Whaley v. Bright, 66 So. 644, 189 Ala 134, and Windham v. Stephenson, 47 So. 280, 156 Ala 341, 19 L.R.A. (N.S.) 910, 130 Am.St.Rep. 102; and each succeeding year was upheld in Winston v. Farrow (Ala.Sup.) 40 So. 53, and Holst v. Harmon, 26 So. 157, 122 Ala. 453.

The effect of section 4894 of the Code of 1907 has received consideration by this court. In Truss v. Harvey, 24 So. 927, 120 Ala. 636, it was held:

"Although a mortgage of crops not yet planted only creates an equitable interest, the registration of such mortgage in the county in which the lands upon which the crops are situate, and where the mortgagor resides, operates, under the statute (Code of 1896, § 991) as constructive notice of the lien of such mortgage to a purchaser of such crops in another county."

Thus the effect of section 3373 of the Code of 1907 was not restricted as to notice of the contents of conveyances as only convey the legal title to property as distinguished from an equitable title. Truss v. Harvey, supra; Whaley v. Bright, supra; Woods v. Rose & Co., 33 So. 41, 135 Ala. 297.

The question of fact therefore is that of whether the evidence shows, as required, that the cotton was in fact subject to the mortgage attempting to convey the crops thereafter to be grown on the mortgagor's land within the term embraced therein, and as follows:

"*** Party of the first party hereby grant, bargain, sells, and conveys to the party of the second part the entire crop of corn, cotton, cotton seed, hay, oats, grain, and all other crops or produce of every description raised by the party of the first part on the land owned or rented by said party for the years, 1923, 1924, 1925, in said state; also all the rents or claims for advances due or to become due to the party of the first part as landlord from any tenant in said county during said years; also, the following described estate and personal property. ***"

Mr. Fay, the president of the Union State Bank, testified, as to his dealings with the mortgagor as to the bale of cotton stored in Jake Garry's barn in the latter part of 1924, that the cotton was placed there by the mortgagor's son after the arrangement for temporary storage was made by witness; that a short time thereafter the mortgagor asked witness if he had sold the cotton, and witness "got hold of old man Adams and had him to load it on his wagon and take it to" defendant, where it was sold, and the proceeds deposited in said bank to the credit of Dr. Bradford. Defendant asked the witness "if the bank didn't give Dr. Bradford credit on his account with the bank, his indebtedness to the bank," and the court sustained plaintiff's objection, and defendant excepted. This ruling is assigned as error.

The simple question of fact then is, Has plaintiff shown title or lien on the cotton, as against such bona fide purchaser for value, conceding the effect of the registration statute as to constructive notice? It is shown without dispute that the bale of cotton was grown by L.H. James, the tenant of Bradford for the year 1924 on "Bradford's place." Bradford does not testify when he acquired the land or said tenant. The mortgage was executed by B.R. Bradford on November 15, 1922, and described lands by government numbers, etc. The testimony of L.H. Jones for plaintiff was:

"That he knew B.R. Bradford; that he lived on said Bradford's land in the year 1924;

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