Darden v. Gerson

• Citation: 9 So. 278,91 Ala. 323
• Parties: DARDEN v. GERSON ET AL.
• Decision Date: 02 May 1891
• Court: Supreme Court of Alabama

9 So. 278

91 Ala. 323

DARDEN v. GERSON ET AL.

Supreme Court of Alabama

May 2, 1891

Appeal from city court of Montgomery; THOMAS M. ARRINGTON, Judge.

Bill in equity by Gerson & Winter against J. F. Darden to enforce a vendor's lien. From a judgment for plaintiffs, defendant appeals.

A A. Wiley, for appellant.

E P. Morrisette, for appellees.

COLEMAN J.

The bill was filed by appellees to enforce a vendor's lien. It appears that Darden purchased from Mitchell a piece of land, for which he gave his two promissory notes. Upon one of these notes there was a balance due of about $275 and upon the other of $100. Darden applied to Gerson & Winter for a loan-$275-to pay the larger note. Whether the money was loaned directly to Darden or paid to Mitchell is immaterial. The money was paid over to Mitchell, and the note upon which there was a balance due of $275 was assigned to Gerson &amp Winter. At the time of Darden's purchase there was a prior incumbrance on the land for eighty or eighty-five dollars. Without consultation or request from Darden, Gerson & Winter bought from the Mitchells the other note of Darden given for the land, upon which there was a balance due of $100. The defense to the bill to enforce the vendor's lien was payment. On the 28th day of January, 1887, in order to obtain supplies and assistance to make a crop, Darden executed his note and mortgage to Gerson & Winter, conveying "the entire crop of cotton which may be raised by me, or in which I may have any interest, on the plantation known as the 'Darden Place,' or any other place, which I or my hands may cultivate the present year. All the rents due me." Mrs. Darden, wife of the defendant, owned a landed separate estate at the time the mortgage was executed by her husband. In October, 1887, J. F. Darden paid over to Gerson &amp Winter $300, stating to them that it was for rents collected from his wife's land, and directed them to apply it to the payment of the Mitchell land-note. Gerson & Winter refused to do this, and applied it to the note given to secure advances and supplies, and which was secured by the mortgage. The question presented is whether Darden could mortgage the rents of lands which were the property of his wife, and, if so, whether the mortgage embraced these rents. There being no proof of show the character of the estate of the wife, the law presumes it was her statutory separate estate. Bolman v. Overall, 86 Ala. 171, 5 South. Rep. 455.

At the time of the execution of the mortgage by Darden to Gerson &amp Winter, 28th January, 1887,...