Hodges v. Westmoreland

• Decision Date: 17 May 1923
• Docket Number: 8 Div. 551.
• Citation: 209 Ala. 498,96 So. 573
• Parties: HODGES v. WESTMORELAND.
• Court: Alabama Supreme Court

96 So. 573

209 Ala. 498

HODGES v. WESTMORELAND.

8 Div. 551.

Supreme Court of Alabama

May 17, 1923

Appeal from Circuit Court, Morgan County; Robert C. Brickell, Judge.

Action by W. D. Westmoreland against Davis Hodges. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under section 6, p. 449, Acts 1911. Reversed and remanded.

Tennis Tidwell, of Albany, for appellant.

G. O Chenault, of Albany, for appellee.

THOMAS J.

The suit is in two counts, for conversion of personalty and for the destruction of a lien. The sufficiency of the count, in case, for the destruction of the lien, is not controverted and nothing is decided as to this. There was judgment for plaintiff.

Assignments of error challenge the sustaining of demurrer to plea 2 and the rulings in rejection of evidence. Appellant's counsel says that these rulings present the same question: The right of plaintiff to recover from the defendant usurious interest included in the mortgage, upon which the suit is based. The questions: "Westmoreland only loaned approximately $200?" and, "The amount was $200, and the interest amounting to $16 was included in the mortgage?" were intended to elicit the fact that $16 interest was charged on a loan of $200 and added to the face of the mortgage, dated March 10, 1920, and due December 1, 1920. The mortgage executed by J. C. Sparks to W. D. Westmoreland, embraced the crop to be "raised" by the mortgagor, "his family, or hands during the year 1920" on lands rented from one Crow. The respective objections to said questions being sustained, due exceptions were reserved.

Usury is a personal defense available to the party, or his representatives or heirs at law, sought to be bound by the contract tainted therewith. A stranger to the transaction will not be allowed to plead and prove that the contract was usurious. There are many applications by this court of this rule.

McGuire v. Van Pelt, 55 Ala. 344; Bernheimer v. Gray, 201 Ala. 462, 78 So. 840; Griel Bros. v. Lehman, Durr & Co., 59 Ala. 419; Masterson v. Grubbs, 70 Ala. 406; Moses Bros. v. Home, etc., Ass'n, 100 Ala. 465, 14 So. 412; Stickney v. Moore, 108 Ala. 590, 19 So. 76; Eslava v. N.Y. Nat. B. & L. Ass'n, 121 Ala. 480, 25 So. 1013; Nance v. Gray, 143 Ala. 234, 38 So. 916, 5 Ann. Cas. 55; Speakman v. Oaks, 97 Ala. 503, 11 So. 836; Welsh v. Coley, 82 Ala. 363, 2 So. 733. The case of Barclift v. Fields, 145 Ala. 264, 41 So. 84, relied upon by appellant, was a bill filed by the mortgagor to enjoin a foreclosure sale and for redemption. The observations therein contained are without application to the instant rulings, sustaining demurrer to plea 2 and sustaining objections to the foregoing questions. There was no error.

The action of the trial court in sustaining demurrers to pleas 3 and 4 is challenged. The demurrer was well assigned to plea 3. An equitable title is not sufficient to sustain or defeat an appropriate action for the recovery of personal property or in trover for the value thereof. Hicks v. Meadows, 193 Ala. 246, 69 So. 432; Crow v. Beck, 208 Ala. 444, 94 So. 580; Tucker v. Speer, 202 Ala. 604, 81 So. 546; Carleton v. Kimbrough, 150 Ala. 618, 43 So. 817. Moreover, the judgment sought to be set up was res inter alios acta as to defendant.

The legal title or superior lien to the crop grown on Crow's lands, as between the landlord and tenant or the landowner and laborer cultivating the same and raising the cotton in question, was in Crow; the tenant or laborer only having a lien thereon or title subject to the landlord's superior lien. As the mortgagee of Sparks-the tenant or laborer, as the case may be-Westmoreland, therefore, had only a claim on the part of the crop which was in subordination to Crow's superior lien or title. It follows that Hodges had the right, in diminution of the damages claimed of him for the purchase of the cotton, to show what portion of the proceeds of the sale of the cotton (raised on Crow's land) was paid to Crow in the discharge or extinguishment of the latter's superior claim or title. The mortgagee of the laborer or the tenant cannot complain in trover of a sale of a portion of the crop sold with his permission, for the benefit of the landlord, or the owner of the land, so long as the latter's title or interest in the crop exists or is unextinguished. Crow v. Beck, supra; Beall v. Folmar Sons & Co., 122 Ala. 414, 26 So. 1; Bush & Co. v. Willis, 130 Ala. 395, 399, 30 So. 443; Pinckard v. Cassels, 195 Ala. 353, 357, 70 So. 153. Evidence in reduction of damages may have been given under the general issue.

Assignments of error present for review the action of the trial court in declining to admit in evidence a check of date November 3, 1920, on the Morgan County National Bank for $108.87, payable to the order of J. C. Sparks (the mortgagor in question), signed "Davis Hodges" (the defendant), and indorsed thereon, "For 1 B. C.," which the evidence shows was the purchase price paid by Hodges for one bale of cotton. On the face of the check were indorsements, "Teller No. 1," and, "Paid 11-3-20, M. C. N. B." This court has judicial knowledge that such indorsement, of date of payment, was that of November 3, 1920. Sovereign Camp of W. O. W. v. Reed, 208 Ala. 457, 94 So. 910. Further indorsements on the back of the check were: "J. C. Sparks." "W. D. Westmoreland." Before this check was offered in evidence, plaintiff had testified that his name was W. D. Westmoreland, and it was his signature on the back of the check. The defendant's evidence showed that the check in question was "one of the checks which I (Hodges) gave for the cotton in question"; that the check came back in the usual course of business, marked "paid" by the bank, with the indorsement in question, in about a month after it was given to Sparks. Here defendant...