Houston v. Davis

• Decision Date: 24 May 1909
• Citation: 162 Ala. 122,49 So. 869
• Parties: HOUSTON v. DAVIS.
• Court: Alabama Supreme Court

49 So. 869

162 Ala. 122

HOUSTON v. DAVIS.

Supreme Court of Alabama

May 24, 1909

Appeal from Circuit Court, Barbour County; A. A. Evans, Judge.

Action by S. V. Davis, landlord, against a tenant, to enforce a lien on cotton for rent, in which Belle Houston, mortgagee of the tenant, intervened to try the right to the property. Judgment for plaintiff, and the mortgagee appeals. Reversed and remanded.

Peach &amp Thomas, for appellant.

T. M Patterson, for appellee.

ANDERSON J.

This was a statutory trial of the rights of property between the landlord and the mortgagee of the defendant. The only question in the case was the amount of rent that the defendant agreed to pay his landlord, Davis; the defendant and claimant contending that it was 1,750 pounds of lint cotton, and the plaintiff contending that it was 2,750 pounds of lint cotton. If it was 2,750 pounds, the judgment was properly rendered for the plaintiff. If but 1,750 pounds then there should have been a judgment for the claimant, as it was undisputed that the plaintiff was paid 1,532 pounds of the grades called for and had been tendered the value of the other 218. Whether a tender of the value, instead of the cotton itself, would satisfy the lien, we need not decide, as the record shows that the plaintiff did not question such a tender, but took issue upon same. Moreover, if the plaintiff changed the note, which was the rental contract, from 1,750 pounds to 2,750 pounds, without the consent of the defendant that would discharge the defendant of any further liability thereon. Brown v. Johnson Bros., 127 Ala. 292, 28 So. 579, 51 L. R. A. 403, 85 Am. St. Rep. 134; 3 Brick. Dig. 27.

The defendant testified that his rent was but 1,750 pounds, and plaintiff testified that it was 2,750. They both agree that the rental contract was in writing, and that a copy was given the defendant, and that both the original and copy were written by the plaintiff; the plaintiff claiming that the original was never changed, but that the copy was changed after its delivery to the defendant. The defendant claims that the copy was not changed, but that the original was changed, after execution and delivery, from 1,750 pounds to 2,750 pounds. Pruett, a writing expert, testified that the original, and not the copy, had been changed. The original papers have been sent up with the record, and our examination of same discloses that the original, and not the copy, was...