First Nat. Bank v. Harden

• Decision Date: 22 April 1919
• Docket Number: 5 Div. 289
• Citation: 17 Ala.App. 165,82 So. 655
• Parties: FIRST NAT. BANK OF ALEXANDER CITY v. HARDEN et al.
• Court: Alabama Court of Appeals

82 So. 655

17 Ala.App. 165

FIRST NAT. BANK OF ALEXANDER CITY v. HARDEN et al.

5 Div. 289

Court of Appeals of Alabama

April 22, 1919

Rehearing Denied May 6, 1919

Appeal from Circuit Court, Elmore County; Leon McCord, Judge.

Action by the First National Bank of Alexander City, Ala., against G.A. Harden and E.W. Thompson. Judgment for defendants, and plaintiff appeals. Affirmed.

Certiorari denied, 82 So. 422.

George A. Sorrell, of Alexander City, for appellant.

G.F Smoot, of Wetumpka, for appellees.

SAMFORD, J.

This was a suit for the conversion of cotton by the mortgagee against a warehouseman, and was tried upon an agreed statement of facts by the court without the intervention of a jury.

On January 2, 1914, one Graham became indebted to the plaintiff and to secure the indebtedness executed a mortgage on personal property, including "his entire crop of cotton grown in Elmore county during the year 1914." At this time Graham lived in Elmore county on a tract of land owned by himself, which he was farming, and during the year 1914 Graham raised a crop consisting of cotton and other farm products. The defendants, during the year 1914, were warehousemen in the town of Eclectic, and were doing a general warehouse business for the public, weighing and storing cotton for hire. They received from Graham 15 bales of cotton of various weights, which cotton was raised by Graham during the year 1914, in Elmore county. This cotton was stored in their warehouse, and receipts therefor were given to Graham. The cotton remained in the warehouse for a period of two or three weeks, and then Graham presented to the defendants their receipts, and demanded and received the cotton into his possession. Graham thereupon carried the cotton away to some other place, and made disposition of it unknown to any of the parties to this suit. The mortgage was duly recorded in Elmore county. The court rendered judgment for the defendants.

In order for the plaintiff to be entitled to recover in this suit, the burden would be on it to show that the cotton claimed to have been converted was property described in the mortgage held by it. In other words, unless the facts are sufficient to show that this cotton was grown by Graham, the mortgagor, or under his direction, in Elmore county, on lands owned by him, or in which he had some interest at the time of the execution of the mortgage, the plaintiff would have no specific lien or title to the cotton sued for. Windham &amp Co. v. Stephenson, 156 Ala. 341, 47 So. 280, 19 L.R.A (N.S.) 910, 130 Am.St.Rep. 102; McNeil v. Henderson et al., 1 Ala.App. 405, 55 So. 269. In the instant case, while it is true that the agreed statement of facts recites that, "At the time of the giving of the mortgage the said T.M. Graham lived in Elmore county on a tract of land owned by himself, and was engaged in the business of farming on said tract of land, and during the year 1914 the said T.M. Graham did raise a crop of cotton and other farm products," and that "said cotton was raised by T.M. Graham in the year 1914, in Elmore county, Ala., and the said Harden and Thompson received said cotton from T.M. Graham," it nowhere appears that the cotton in question was raised upon the lands owned by Graham, nor does it appear that Graham was not engaged in farming other lands in Elmore county during the year 1914 which were not covered by plaintiff's mortgage. Non constat, after the giving of the mortgage in January, Graham did acquire other lands upon which he raised cotton.

It is insisted by the appellant that the delivery of the cotton by the defendants to Graham, the mortgagor, after constructive notice of plaintiff's mortgage, rendered the defendants liable to the plaintiff for the conversion of the cotton. In support of this proposition plaintiff's counsel have cited a line of authorities in line with the decision in the case of Hudmon v. Du Bose, 85 Ala. 446, 5 So....