Mack v. Beeland Bros. Mercantile Co.

• Decision Date: 30 June 1925
• Docket Number: 3 Div. 497
• Citation: 21 Ala.App. 97,105 So. 722
• Parties: MACK v. BEELAND BROS. MERCANTILE CO.
• Court: Alabama Court of Appeals

105 So. 722

21 Ala.App. 97

MACK v. BEELAND BROS. MERCANTILE CO.

3 Div. 497

Court of Appeals of Alabama

June 30, 1925

Rehearing Denied Aug. 4, 1925

Appeal from Circuit Court, Butler County; Arthur E. Gamble, Judge.

Claim suit between Fannie Belle Mack, claimant, and Beeland Bros Mercantile Company, plaintiff. From a judgment sustaining demurrer to, and dismissing, her claim, the claimant appeals. Affirmed.

Certiorari denied by Supreme Court in Ex parte Mack, 105 So. 725.

Powell & Hamilton, of Greenville, for appellant.

Lane &amp Lane, of Greenville, for appellee.

RICE, J.

One Parker executed a valid mortgage, which was duly of record to appellant, covering the lands upon which was grown the cotton, the subject of this controversy, during the year 1920. Prior to, and on, and continuously after, January 1 1922, this mortgage was in default, but, except as hereinafter noted, Parker's possession remained undisturbed.

The said lands were rented for the year 1922 by Parker to one Bush; the said Bush agreeing to pay, on October 1, 1922, as rental therefor, 1,000 pounds of lint cotton.

On July 15, 1922, appellee sued out an attachment against the said Parker, which was levied by the issuance of a sheriff's writ of garnishment directed to the said Bush, and executed on July 27, 1922.

On September 23, 1922, appellant properly notified Bush Parker's tenant, that Parker had made default in the payment of the mortgage debt; that she elected to declare the entire mortgage indebtedness due, under the terms of the mortgage, and demanded payment of the rent of the lands for the year 1922, also notifying him not to pay the rents to any other person than appellant or her attorneys.

The garnishee, Bush, filed his answer on October 7, 1922, to the writ of garnishment served upon him, in which he set forth the facts as outlined above, and further that the 1,000 pounds of lint cotton, which he was to pay, had been stored in a warehouse, a receipt taken by him therefor, and said receipt left with the Bank of Greenville, with instructions to deliver same to such person as the courts hould adjudge entitled to it. Later appellant, under the statutes, filed her claim to the aforementioned cotton, setting up the facts as we have stated them.

Appellee filed appropriate demurrers to appellant's said claim pointing out that the same showed as a matter of law that appellant's claim to said cotton was subordinate to that of appellee, and, from the judgment sustaining said demurrers and (appellant declining to plead further) dismissing appellant's claim, this appeal is prosecuted.

There is nothing in the record that questions the validity or regularity of the attachment proceedings, or the service of the sheriff's garnishment.

The controlling issue in the case, we think, is properly presented for our decision; that is, whether the appellant (claimant) has a claim or demand upon the above-mentioned cotton superior to the rights of the plaintiff or garnishing creditor (appellee) derived from the garnishment process. Further than this, the appellant (claimant) has no concern with the debtor and the garnishee, or with the issues in their respective proceedings. Norwood & Co. v. Voorhees, Miller & Co., 129 Ala. 314, 29 So. 680.

We have been furnished with excellent briefs, both on behalf of appellant and appellee, and while there may appear to be, and perhaps are, some holdings in some of the cases cited by appellant, inconsistent with some of those, on similar questions, in the cases cited by appellee, yet we think the controlling principles are reasonably clear.

As said in the opinion in the case of Am. Freehold Land Mtge. Co. v. Turner, 95 Ala. 272, 11 So. 211:

"A mortgagor in possession of the mortgaged lands is the owner, against all persons and for all purposes, except as against his mortgagee; but as to him, there being no reservation of right to the possession or to the rents in the conveyance, he is a mere tenant at sufferance. The mortgagee may enter, or bring ejectment to recover possession. But, if he does not enter, or bring ejectment, or give notice that he claims the rents, the mortgagor is entitled to the rents. All payments of rent by his tenants to the mortgagor, before entry or notice, will be sustained. After the law day of the mortgage, the tenants of the mortgagor who have become such after the execution of the mortgage are not the tenants of the mortgagee."

To a similar effect is the holding in Drakford v. Turk, 75 Ala. 339, from which we quote as follows:

"But in this case the mortgage was executed before the renting of the premises, and before the entry of the tenant. A mere notice by the mortgagees that they claimed the rent would not convert the tenant into the tenant of the mortgages."

The case of Comer v. Sheehan, 74 Ala. 452, cannot be distinguished in many respects deemed by us material, on the facts or law, from the case at bar. In that case it was held:

"If the land is in the possession of a tenant, under a lease executed by the mortgagor subsequent to the mortgage, statutory notice to him [tenant] by the mortgagee, *** 'vests in him [mortgagee] the right to the possession,' " etc. "But, while he may, possibly, thereby acquire a right to maintain an action for future use and occupation, he cannot recover rents past due and unpaid, which the mortgagor had already transferred to another."

True, in the case just quoted from, the notice mentioned was given by the mortgagee, in his capacity as purchaser, at his own mortgage sale, but we cannot see that the principle is different in such case from what it would be in the case before us, certainly not different in the sense that appellant (mortgagee) here can claim any stronger position with reference to the rents than was occupied by the mortgagee in the Comer v. Sheehan Case. It might be said that in that case the notice by the mortgagee was given to the tenant of the mortgagor before the rent in question was actually due, although, because of an arrangement between the mortgagor, the tenant, and a third party, the note evidencing the amount of the rent, and payable to mortgagor, had been, prior to date of the notice from mortgagee, transferred to said third party, in such sort that the Supreme Court was led to remark:

"The case must therefore be regarded as one of a lease made by a mortgagor, subject to the rights of the mortgagee, where the tenant has undertaken to pay the entire rent for the year in advance."

And the mortgagee was denied recovery.

And in the case of Ala. Nat. Bank v. Mary Lee Coal & Railway Co. et al., 108 Ala. 288, 19 So. 404, it was said:

"The rule is well established in such cases that, until the mortgagee does actually intervene for the purpose of intercepting the rents, incomes, and profits of the mortgaged estate, these belong to the mortgagor, and upon such intervention after the law day, either by notice to tenants of the mortgagor to pay rents to the mortgagee, by the latter's entry for condition broken, or by the appointment of a receiver at the suit of the mortgagee on a bill averring insufficiency of the mortgaged property to pay the debt, and praying the interception of the rents for that purpose, such only of the rents, incomes, and profits as have not accrued, such only as do accrue after such notice, or entry, or appointment of a receiver, may thus be intercepted and be applied to the mortgage debt."

Of course it will be kept in mind that...