Courtney v. State

• Decision Date: 12 May 1914
• Docket Number: 270
• Parties: COURTNEY v. STATE.
• Court: Alabama Court of Appeals

65 So. 433

10 Ala.App. 141

COURTNEY v. STATE.

No. 270

Court of Appeals of Alabama

May 12, 1914

On Rehearing, June 3, 1914

Appeal from Circuit Court, Covington County; A.H. Alston, Judge.

Marion Courtney was convicted of selling certain crops with intent to hinder, delay, and defraud a mortgagee, from which defendant appeals. Affirmed.

Baldwin & Murphy, and Powell & Albritton, all of Andalusia, for appellant.

R.C. Brickell, Atty. Gen., and T.H. Seay, Asst Atty. Gen., for the State.

THOMAS J.

The defendant, Marion Courtney, appellant here, was charged with removing or selling 75 bushels of corn and 2 bales of cotton with intent to hinder, delay, or defraud one W.R. Tisdale who is alleged to have had a lawful and valid claim thereto under a written instrument, lien created by law for rent and advances, or other lawful or valid claim thereto, verbal or written; the offense charged being, as observed, that created by section 7342 of the Code.

The corn and cotton in question were raised on premises belonging to defendant and his brother by one Hattaway, under a contract between the latter and them, whereby they were to furnish the land and team to cultivate it, and Hattaway the labor, and whereby Hattaway was to have half the crop raised, and they the other half. This created between them and him the relation of hirers and hireling, and not that of landlord and tenant, as a result whereof the entire legal title to the crops vested jointly in them as tenants in common, while Hattaway had only a lien thereon to the extent of the value of one-half of such crops. Code, § 4743, and cases there cited.

On January 27, 1912--the year in which the crops were raised, and after the making of the contract mentioned--said Hattaway, in order to secure advances for making the crop, executed a mortgage thereon to W.R. Tisdale, the person alleged here to have been defrauded by defendant, in which execution Hattaway was joined by the defendant, but not by defendant's brother. The defendant offered to prove (the refusal of the court to permit which is here urged by him as error) that on January 12, 1912--some two weeks, as seen, before the above referred to Tisdale mortgage was executed, but after the Hattaway contract was made--defendant and his brother executed to the First National Bank of Opp a mortgage on these same crops, and that such mortgage was duly recorded and on record at the time the Tisdale mortgage was executed by defendant and Hattaway, and that, when the crops were gathered, they were sold, and the proceeds turned over to the said First National Bank of Opp.

In Conner v. State, 97 Ala. 83, 12 So. 413, it is held to be a good defense to a charge predicated, as the one here, on section 7342 of the Code that the property was sold with the consent of the prior lienholder and applied to the discharge of his lien. See, also, Smith v. State, 139 Ala. 115, 36 So. 727. That authority, however, does not fit the facts here, for the reason that it appears here that Hattaway, who, as seen, raised the crops, and who, as observed, had a first lien upon them under section 4743 of the Code, did not join defendant and his brother in their mortgage thereon to the said First National Bank; nor does it appear that Hattaway otherwise waived such lien to said bank. The result is that his lien on said crops was unimpaired by said mortgage to the bank, but was superior to it, being of the same force and effect as a landlord's lien. Code, § 4743; Amos v. Garvin (Sup.) 39 So. 990; Conner v. State, 97 Ala. 84, 12 So. 413. The subsequent execution by him to Tisdale of the mortgage on the crops was in effect an equitable assignment to Tisdale of his lien upon and claim to such crops. Farrow v. Wooley & Jordan, 149 Ala. 375, 43 So. 144; Ballard v. Mayfield, 107 Ala. 398, 18 So. 29; Windham v. Alexander, 156 Ala. 345, 47 So. 280, 19 L.R.A. (N.S.) 910, 130 Am.St.Rep. 102. To this extent Tisdale's claim upon such crops was therefore paramount to the mortgage of said First National Bank, and in equity Tisdale had a right to have the crops applied, to the extent of this lien, to his mortgage debt, and could probably, upon the facts here, have sustained an action of trespass on the case for the destruction of this equitable lien of his. Equitable liens are also as much within the protection and purview of the criminal statute (section 7342), with a violation of which defendant is here charged, as are legal liens. Varnum v. State, 78 Ala. 28; Jernigan v. State, 81 Ala. 61, 1 So. 72.

The defendant's counsel cite us to the case of Smith v. State, 84 Ala. 438, 4 So. 683, and upon that authority urge that, since the defendant was a tenant in common with his brother of the crops mentioned, the facts here would not justify his conviction under section 7342 of the Code--the section he is charged with violating--but that, if he could be convicted at all upon such facts, he could be convicted only upon a charge predicated on section 7821 of the Code, which provides that:

"Any tenant in common, or any person in any other way interested in any personal property or outstanding crop, in which any other person has an interest, who, with intent to defraud his cotenant, or such other person, sells, gives away, or otherwise disposes of, or conceals, or removes such personal property or outstanding crop, or any part thereof, shall be punished as if he had stolen personal property of the value of the interest of such cotenant or other person."

The answer to this contention is that the defendant, in his alleged act of selling or removing the property, is not charged with any intent to defraud his brother, who, it appears, was a tenant in common with him of the property. If he had been, then we concede that a conviction could be sustained only under said section

7821 of the Code, for to this extent--the extent of protecting the interest of a cotenant from the acts of his fellow cotenant--that section has a field of operation exclusively its own. Holcombe v. State, 69 Ala. 219. In this case the defendant, however, in his alleged act of selling or removing the property, is charged, as before stated, with an intent to defraud W.R. Tisdale, whose interest in the property, it appears from the evidence as pointed out, was merely that of a lienholder. And while we are of opinion that a conviction might be also sustained under section 7821, which appears to be broad enough to protect a lienholder, we are clear that it can be sustained under section 7342.

With respect to the latter section, our Supreme Court has said:

"The statute was not intended to protect the general ownership of personal property. True, the statute employs the word "claim," as well as the word "lien," and the former is generally of larger meaning than the latter, and may embrace the general ownership, while the latter usually embraces simply a right to charge the property. But it is evident that the words, as employed in the statute, are used in a kindred sense, embracing mere charges or incumbrances on the general ownership, and not the general ownership itself." Smith v. State, 84 Ala. 438, 4 So. 683.

The larceny statute protects the general ownership of property; section 7821 protects the ownership of a tenant in common against the acts of his cotenant, who either conceals it removes it, sells it, gives it away, or otherwise disposes of it with intent to defraud (Holcombe v. State, 69 Ala. 219), and also protects the right of any person who has an interest in the property of whatever kind less than the sole or joint...