Bates v. Bank of Moulton

• Decision Date: 30 March 1933
• Docket Number: 8 Div. 489.
• Citation: Bates v. Bank of Moulton, 226 Ala. 679, 148 So. 150 (Ala. 1933)
• Parties: BATES v. BANK OF MOULTON.
• Court: Alabama Supreme Court

148 So. 150

226 Ala. 679

BATES v. BANK OF MOULTON.

8 Div. 489.

Supreme Court of Alabama

March 30, 1933

Rehearing Denied May 25, 1933.

Appeal from Circuit Court, Lawrence County; James E. Horton, Judge.

Attachment suit to recover rents by the Bank of Moulton against J. R Bates.From a judgment for plaintiff, defendant appeals.

Transferred from Court of Appeals.

Affirmed.

John C Forney, of Moulton, and Wert & Hutson, of Decatur, for appellant.

Wm. L Chenault, of Russellville, for appellee.

KNIGHT Justice.

Suit by Bank of Moulton against J. R. Bates, commenced by attachment.On the day of the issuance of the attachment writ, the plaintiff in the attachment filed with the clerk a complaint, claiming of the defendant the sum of $600 "for rent and advances of a tract of land known and called the John Freeman land for the years 1928, 1929 and 1930."Upon this complaint a summons was issued in all respects as if the suit had been begun by summons and complaint.A copy of this summons and complaint was served by the sheriff of Lawrence county upon the defendant on the 26th day of September, 1930.

The affidavit for attachment was made by an agent of the plaintiff before the clerk of the circuit court on September 23, 1930, but bears the date of filing as of September 24, 1930.The bond for attachment was approved by the clerk of the court on September 23, 1930, and is marked "filed" as of tat date, while the attachment writ was issued on September 24, 1930.

Thereafter, and within the time for pleading, the defendant filed in the cause a motion, which is in words as follows: "Comes J. R. Bates and says specially as follows: That he is in possession of the lands described in said complaint, that said Bank of Moulton has foreclosed a mortgage made by him to said bank on said lands, and that said Bates was in possession of said lands when he executed said mortgage and is now and has been in possession of said lands ever since he executed said mortgage; said Bank of Moulton has not entered into the possession of said lands, has not brought ejectment for said lands against said defendant, and has not until he brought this suit given defendant any sort of notice that the Bank of Moulton claimed said rents and by no agreement made is said Bates a tenant of said Bank of Moulton; therefore said Bates says the attachment in this cause was issued in a cause of action not authorized and asks the court for a rule on plaintiff to show cause why said attachment be not dissolved; and prays the court to dissolve said attachment, after fixing a day for the hearing of this application, of which day the court will please give notice to all concerned including plaintiff in above cause namely The Bank of Moulton."

This motion was signed by the defendant, and duly sworn to by him.The record does not disclose that any ruling was made by the court on this motion.We may therefore dismiss this motion from further consideration in the case.

The complaint was amended by adding counts 2 and 4.The defendant filed demurrer to these added counts, and the overruling of these demurrers is made the basis of defendant's first assignment of error.However, the record shows no ruling upon the demurrers, and appellant, therefore, can take nothing by this assignment.

The judgment entry recites that issue was joined "on grounds of attachment, and the general issue with leave as to count 2 as amended, and count 4."

The jury returned a verdict for plaintiff for "the rent for the years 1928 and 1929 and assessed the damages at $100.00," and a like verdict for plaintiff for the "rent for the year 1930, but assessed the damages at $200.00," and to the verdict the jury added these words: "We, the jury, find that the plaintiff had cause for suing out the attachment."There was judgment for plaintiff on the verdict of the jury.And from this judgment the defendant prosecutes this appeal.

The evidence in the case showed, without dispute, that under date of May 2, 1923, defendant and wife executed and delivered to the plaintiff a mortgage on certain lands in Lawrence county, Ala., to secure an indebtedness of $1,639.87, which was evidenced by a promissory note due and payable to the plaintiff on May 3, 1923.The mortgage was introduced in evidence, and in addition to the land it also conveyed personal property, including the crops to be grown on said lands during the year 1923.This mortgage remaining unpaid and in default, the Bank of Moulton, mortgagee, foreclosed, or undertook to foreclose, the same on the 29th day of June, 1927, by selling the property under the terms of the mortgage.At the sale the Bank of Moulton, mortgagee, became the purchaser.The mortgagor, Bates, was shortly thereafter notified of the purchase of the property by the plaintiff at the sale.The testimony on behalf of the plaintiff tended to show that Bates after the foreclosure sale expressed a desire to redeem the property, and discussed with plaintiff's attorney the matter of "buying the property back, getting it arranged, getting it adjusted, taking the property back and getting it straightened out."R. M. Byars, the president of the Bank of Moulton, among other things, testified that "in the early part of the year following the foreclosure Mr. Bates came to me and wanted to rent it (the land).He just told me he would like to.I told him I didn't have the authority to rent it, it would have to be taken up with the bank committee."There was no rental contract between the plaintiff and the defendant, but there was evidence before the jury tending to show that the defendant continued in possession of the property during the years 1928, 1929, and 1930, and that during each of said years a portion of the land was cultivated.There was testimony as to the reasonable rental value of the property during said period.The testimony for the plaintiff further tended to show that, before the attachment was issued, a part of the crop grown on the land had been disposed of.There was no pretense that the defendant had paid plaintiff anything for the rent, or for the use and occupation of the land for the years 1928, 1929, or 1930.

The defendant, as a witness in his own behalf, testified that no notice to vacate or to give up possession of the land was ever given him; that he did not live on the land; that he did not rent it; and that he never had any conversation with Mr. Downing or Mr. Byars about renting it; that none of the land was cultivated in 1928, while about four acres were cultivated in 1929; that no tenants of his cultivated it; "that one of his boys volunteered to tend it"; that in 1930 some of the land was planted in cotton, corn, and cane; that the land in question adjoined his home place; and that it was "half a quarter" from the house in which he lived to the land.The defendant further testified that a man by the name of Flanigan cultivated the crop on the land in 1930, and that he(defendant) was expecting part of the rent out of Flanigan that year, and that the place was worked with defendant's teams.Defendant further testified that he did not use the land in the years 1928 and 1929.

The defendant's first objection was to the introduction in evidence by the plaintiff of the writ of attachment.The ground assigned was that there was no bond and affidavit filed at the time the writ was issued.No other ground of objection was urged.We will therefore only consider the ground assigned.The record shows that the writ was issued on September 24, 1930, and at that time the affidavit and the bond duly approved by the clerk was on file.Appellant's said objection as for the ground assigned was without merit, and properly overruled.For like reason, the defendant's objection to the return of the sheriff, showing the levy on the crops, was overruled without error.

With reference to the foreclosure of the mortgage of Bates and wife to the Bank of Moulton, the following appears in the bill of exceptions:

"Mr. Chenault: 'We offer in evidence notice of sale of this land under the terms of the mortgage, which notice recites the description in the mortgage, and signed by the Bank of Moulton by O. O. Judy, cashier, E. B. Downing, attorney, and also recites,'

"Court: 'How does the provision of the mortgage say?'

"Mr. Chenault: 'By posting at three public places.'

"Court: 'Are you going to show that?'

"Mr. Chenault: 'Yes, sir, I am going to show that.'

"Mr. Hutson: 'We object unless they do show it."'

E. B. Downing, witness on behalf of plaintiff, then was called to the stand and testified:

"My name is E. B. Downing.I was a practicing attorney at the Moulton Bar in June, 1927, and as such attorney this mortgage (indicating) was turned over to me by the Bank of Moulton, or by its officers fore (for) foreclosure.Following that I prepared three notices to post.That notice shows the correct date on which I posted them.I posted one down here on this bulletin board in the vestibule in the court-house, and I posted one on a telephone or telegraph pole, I mean a light pole out on this road to Decatur, and came back around and posted one I think on a tree is my recollection-on a post of three out near the colored church.Those notices were identical with this (indicating); made by the same stroke of the typewriter.I put in a carbon paper and made them all at the same time.This notice says I would sell on the 29th day of June, 1927.I cried the sale under the terms of the mortgage, and under the notice given, before the court-house door at Moulton on that date.

"Here the following question was asked the witness by the plaintiff:

"Q.'At the sale who became the purchaser?'A.'The Bank of Moulton.'

"Court: 'Who?'A.'Bank of Moulton."'

The bill of...