Baker v. Patterson

• Decision Date: 03 April 1911
• Citation: 55 So. 135,171 Ala. 88
• Parties: BAKER v. PATTERSON.
• Court: Alabama Supreme Court

55 So. 135

171 Ala. 88

BAKER v. PATTERSON.

Supreme Court of Alabama

April 3, 1911

Rehearing Denied May 5, 1911.

Appeal from Circuit Court, Coosa County; H. P. Merritt, Special Judge.

Action by A. K. Patterson against D. W. Baker. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

McClellan J., dissenting in part.

George A. Sorrell, for appellant.

Riddle Ellis, Riddle & Pruet, for appellee.

SAYRE J.

Appellee sued appellant, joining counts in trover, detinue, and trespass on the case for a destruction of plaintiff's alleged lien as a landlord. The purpose of the suit was to recover a bale of cotton, or its value, which had been grown by one Hancock during the year 1909, and delivered by him to defendant in part payment of a crop mortgage made by Hancock to defendant, and duly recorded March 22, 1909. Plaintiff put forward his claim in two aspects: First, as assignee of a mortgage which Hancock had made to D. H. Riddle on April 3 1909, transferred by him to plaintiff on April 6th thereafter; second, as the holder of a landlord's lien.

1. The mortgage under which defendant claimed conveyed the legal title, and antedated the mortgage to Riddle under which the plaintiff claimed, thus leaving with plaintiff a mere lien if anything. A mere lien will not support actions in trover or detinue.

2. Plaintiff's alleged landlord's lien is claimed to have arisen in some way out of the following facts: Hancock had rented the farm where this bale of cotton was grown from plaintiff during the years 1907 and 1908. At the end of the year 1908, plaintiff claimed that Hancock owed him a balance on advances. This claim Hancock denied, and announced his purpose not to rent from plaintiff for another year. But he accepted a lease of the same premises from Riddle. It is not denied, and every circumstance goes to show, that plaintiff was a party to this arrangement, though he entered into no formal writing. In the contract of lease between Riddle and Hancock, it was recited that Hancock was indebted to plaintiff for a balance from previous years, which balance was secured either by mortgage or landlord's lien, and it was set down in the contract that Riddle was to procure a transfer to himself of plaintiff's claim, and should retain the same liens that plaintiff had. No mortgage from Hancock to plaintiff was shown in evidence, and plaintiff, when testifying as a witness in his own behalf, definitely based his claim upon the mortgage which he held by assignment from Riddle. It also appeared without contradiction that at the time Hancock sold the bale of cotton in controversy to defendant, in the fall of 1909, Hancock had paid Riddle all rent and for all advances furnished by the latter during the year. Plaintiff testified, to quote his language: "Mr. Riddle settled the debt between me and the negro (Hancock), and he agreed to give me this mortgage; that is, the mortgage given him by the negro and the mortgage here offered in evidence in settlement of the matter between me and him. There is over $100 due on this mortgage now after allowing the negro credit for everything he has ever claimed." This mortgage to Riddle, dated April 3, 1909, was made to secure any then present or future indebtedness, and was indorsed to plaintiff as follows: "The within debt and property is transferred and conveyed to A. K. Patterson without recourse on me, for value received." This indorsement was dated April 6, 1909. Assuming that this transfer carried with it any security Riddle had apart from his mortgage, the question is what security he had. He had no lien created by law because his mere agreement to pay a debt which he did not in fact pay was not an advance of money or other thing of value for the sustenance or well-being of the tenant or his family or other purpose to subserve which the statute creates a lien in favor of the landlord. The tenant neither got the money nor any relief in accordance with the statutory purpose by Riddle's temporary assumption of the debt, if, indeed, there was a debt and he did become temporarily responsible for it. Nor was there a lien created by law in favor of plaintiff, for Hancock was no longer his tenant when the cotton was grown. We are therefore of opinion that on the evidence shown in the record plaintiff was not entitled to recover on the third count.

It has been uniformly held that the affirmative charge should not be given where the evidence is in conflict as to any material fact in issue, or where from the evidence reasonable inferences may be drawn unfavorable to the party requesting the charge. L. & N. R. R. Co. v. Lancaster, 121 Ala. 471, 25 So. 733.

And it has been repeatedly said that where the bill of exceptions does not purport to set out the entire evidence, nor all its tendencies, any state of the evidence will be presumed which would sustain the ruling of the trial court. In a number of cases, it has been held that a bill of exceptions, framed after the fashion of the bill in this record, does not purport to contain all the evidence upon which the case was tried in the court below. Southern Mutual Ins. Co. v. Holcombe, 35 Ala. 327; Lewis Land Co. v. Interstate Lumber Co., 163 Ala. 592, 50 So. 1036; Lamar v. King, 53 So. 279. In the case at bar there were no pleadings save the complaint and the general issue.

It is shown that the plaintiff introduced evidence to support the complaint. It is further shown that the defendant then introduced proof of facts which, in view of the law of the case as we have stated it, constituted a perfect defense to every aspect of the case alleged in the complaint and sustained by plaintiff's evidence. The court gave the general affirmative charge for the plaintiff. This action of the court, and its refusal of a similar charge to the defendant, raise the only questions presented for review. Does the rule hitherto stated in respect to presumptions in favor of the rulings in the trial court require that we shall presume in the presence of this record that the plaintiff abandoned the only case the record tends to support and established beyond dispute an entirely different case of which the record gives no intimation? And shall we presume that the court below has certified to this court a bill of exceptions which contains evidence foreign to the issue tried in that court, and omits all reference to the evidence which formed the basis of the court's ruling? Only so can the record be relieved of the fact, now appearing on its face that the plaintiff was not entitled to the general charge. No introduction into the record of presumed evidence, relevant to the issues joined, can eliminate that fact. As long as the evidence shown by the bill of exceptions to have been offered by the parties is allowed to stand as identifying the issues of fact between the parties and constituting at least a part of the evidence upon which those issues were determined, the only effect of presuming other evidence favorable to the plaintiff will be to establish a case of conflict. To presume more than this would set up a rule destructive of all bills of exceptions. There have been many decisions in this court touching this subject. They do not require, nor do they permit, a presumption contradictory of the record. In Gaines v. Harvin, 19 Ala. 491, the trial court gave the general charge. The bill of exceptions did not contain all the evidence. The court said: "We have hitherto decided that, where a party seeks to review a charge like this, he must show one of two things: First, that the evidence was conflicting, and that, therefore, the court had no authority to give such charge, as its effect in such case would be to withdraw from the jury the consideration of conflicting proof; or, second, the record must set out all the proof, so that this court may be able to determine whether the charge was correct as predicated upon it, either as being sustained by it on the ground of its sufficiency, or as authorized by it by reason of there being no conflict or dispute in regard to it." This is a correct statement of the rule, and we apprehend there has been no intention to depart from it. Such cases as Evansville Packet Co. v. Slatter, 101 Ala. 245, 15 So. 241, Hunt v. Johnson, 96 Ala. 130, 11 So. 387, and Hood v. Pioneer Co., 95 Ala. 461, 11 So. 10, sometimes cited in the line of cases which treat this question, are not in point. In those cases the issues of fact were tried by the court without a jury, and on appeal this court was passing upon the weight of the evidence, not upon the propriety of instructions to the jury. There are many cases to the effect that, in the absence of a statement in the bill of exceptions that it contains all the evidence, such state of the evidence will be presumed as will save charges given in the trial court from being condemned as abstract. Such are Childs v. State, 58 Ala. 349, and Postal Telegraph Co. v. Hulsey, 115 Ala. 193, 22 So. 854. In School Commissioners v. Godwin, 30 Ala. 242, plaintiffs, suing to recover school lands for the state, made out a prima facie case. But if defendant proved that he had paid the purchase money for the land, about which the bill of exceptions said nothing, he had a valid defense. The court charged for the defendant. The bill of exceptions did not contain all the evidence. It is clear that proof of payment of the purchase money might be inferred without contradicting the bill of exceptions and without putting the evidence in conflict, and for this reason the presumption was indulged that the money had been paid and the general charge for the defendant properly given. Fleming v. Ussery, 30 Ala. 282, and the cases cited to Sanders v. Steen, 128 Ala. 633, 29 So. 586, seem to proceed upon the same principle. In...