Herren v. Burns

• Decision Date: 14 June 1928
• Docket Number: 7 Div. 830
• Citation: 117 So. 417,217 Ala. 692
• Parties: HERREN v. BURNS et al.
• Court: Alabama Supreme Court

117 So. 417

217 Ala. 692

HERREN v. BURNS et al.

7 Div. 830

Supreme Court of Alabama

June 14, 1928

Appeal from Circuit Court, Calhoun County; W.B. Merrill, Judge.

Attachment suit by J.M. Herren against C.A. Burns, with interposition of claim by the Anniston National Bank. Plaintiff takes a nonsuit, with bill of exceptions, and appeals from adverse rulings on pleading and evidence. Transferred from Court of Appeals under section 7326, Code 1923. Reversed and remanded.

J.P Whiteside, of Anniston, for appellant.

Ross Blackmon and Harvey A. Emerson, both of Anniston, for appellees.

ANDERSON C.J.

This was a trial of the right of property between rival lienors or assignors of one Jennings, the landlord, and involved two bales of cotton grown on the rented land during the year 1927. The appellant relied upon the assignment of the rent by virtue of the following clause, "Also the rents that may accrue to us in said years" (meaning the years 1926-1927), appearing in a mortgage given him by the landlord, Jennings, on March 5, 1926. The appellee bank claimed as the assignee of a rent note given Jennings, the landlord, by a tenant November 6, 1926, as rent for the year 1927, and which said note was assigned to it November 15 1926, for value.

The above-quoted provision from the mortgage to the appellant was sufficient as an assignment of the rent. Bennett v McKee, 144 Ala. 601, 38 So. 129. It is suggested that the assignment was inoperative because there was no lien in existence as it related to rent for a succeeding year and the landlord, Jennings, had nothing to assign, but this suggestion is without merit and is foreclosed by the case of Patapsco Guano Co. v. Ballard, 107 Ala. 710, 19 So 777, 54 Am.St.Rep. 131. It was there held that an assignment of the rent in the mortgage, as here, was sufficient to pass the landlord's lien to the assignee to the rent for 1891, although the assignment was made in 1890 and the premises were not then rented for the year 1891, but were rented to the tenants for the year 1891 in or during said year. We therefore hold that the trial court erred in excluding the appellant's mortgage, which included the assignment, and, in effect, held that the appellant had no lien on the cotton.

Appellees' counsel place some reliance upon section 9008 of the Code of 1923 as affecting the appellant's lien. This provision strikes down only mortgages and contracts to mortgage upon crops...