Lamar v. Johnson

• Decision Date: 14 January 1919
• Docket Number: 2 Div. 179
• Citation: 81 So. 140,16 Ala.App. 648
• Parties: LAMAR v. JOHNSON.
• Court: Alabama Court of Appeals

81 So. 140

16 Ala.App. 648

LAMAR v. JOHNSON.

2 Div. 179

Court of Appeals of Alabama

January 14, 1919

Appeal from Circuit Court, Dallas County; B.M. Miller, Judge.

Action by Ernest Lamar against J.H. Johnson. From the judgment rendered, plaintiff appeals. Reversed and remanded.

Reese &amp Reese, of Selma, for appellant.

Pettus Fuller & Lapsley, of Selma, for appellee.

BROWN P.J.

This is an action by the appellant against the appellee to recover the proceeds of three bales of cotton raised by one Golson on a farm near Burnsville in Dallas county, known as the Palmer tract. The trial was by the court without the intervention of a jury, and without regard to the special pleadings in the case, the record containing the following statement:

"Both parties consented in open court that trial by jury be waived, and that the complaint be considered as amended to state a cause of action, and that said cause be tried on a plea of the general issue by consent in short for defendant to introduce any evidence admissible under any special plea."

There was only one conflict in the evidence, and that was with respect to whether the defendant agreed with Golson to pay the rent due from Golson to Lamar. This issue of fact must be treated as determined in favor of defendants by the trial court, and under the rules established for reviewing such questions, this record does not warrant us in disturbing the finding of the trial court on this issue of fact. Mulligan v. State, 15 Ala.App. 205, 72 So. 761; Hackett v. Cash, 196 Ala. 403, 72 So. 52.

The mortgage executed by Golson to defendant in April, 1916, so far as is here pertinent, describes the property covered by that instrument thus:

"And to secure the payment of the above note, as well as all else that said Johnson may advance to me in any manner whatever under this instrument, I hereby grant, bargain, sell and convey unto the said J.H. Johnson the entire crop raised by or for me in which I may have any interest during the year 1915, and each succeeding year thereafter until this is paid in Perry county, Alabama." This description clearly does not cover crops grown in Dallas county, and the defendant cannot justify under it. This brings us to the question in the case: Did Lamar have a lien, as landlord of Golson, on the crops produced by Golson in Dallas county during the year 1915, superior to the right and title of Johnson, under his mortgage executed by Golson in May, to secure him for advances made to said Golson?

Golson in the fall of 1914 made default in the payment of the indebtedness secured by the real estate mortgage held by Lamar, and the evidence shows that, notwithstanding this default, he remained in possession and occupancy of the land up until July, 1915, without any active assertion of the real estate mortgagee, Lamar, of his right to the possession of the land, or steps to intercept and claim the rents and profits thereof. It was while Golson was thus in possession and after the crop for the year 1915 had been planted, that he executed to Johnson the mortgage on his crop. The rule is well established in this state that until the mortgagee actively intervenes for the purpose of intercepting the rents, incomes, and profits of mortgaged real estate, even after default in the payment of the mortgage debt, these belong to the mortgagor. Ala. Nat. Bank v. Mary Lee Coal & Railway Co., 108 Ala. 293, 19 So. 404; Comer v. Sheehan, 74 Ala. 452. In the absence of notice to quit possession or other steps by the mortgagee to recover possession, the mortgagor is not a wrongdoer or trespasser, but is a mere tenant at will of the mortgagee, and as such is entitled to claim the fructus industriales or...