Marks v. Robinson

• Decision Date: 11 May 1887
• Citation: 2 So. 292,82 Ala. 69
• Parties: MARKS v. ROBINSON AND ANOTHER.
• Court: Alabama Supreme Court

2 So. 292

82 Ala. 69

MARKS v. ROBINSON AND ANOTHER.

Supreme Court of Alabama

May 11, 1887

Appeal from circuit court, Montgomery county.

Trover for conversion of bales of cotton. The action was brought by Robinson & Ledyard, suing as partners, against Spencer C Marks, to recover damages for the conversion of 14 bales of cotton, and was commenced on the fifth June, 1885. The record does not show what pleas were filed, but a trial was had on issue joined, which resulted in a verdict and judgment for the plaintiffs for $708.40. The cotton was raised, during the year 1882, by J. P. Caffey, on a plantation in Lowndes county, which he had bought from one Murray; was brought by him, "in October, 1882," to the city of Montgomery and stored in the warehouse of Marks & Fitzpatrick, of which firm the defendant was a member; and was sold for him, on his request, by the defendant, within two hours after it was stored in the warehouse, and the proceeds of sale, less commissions and charges, paid over to him. The plaintiffs claimed the cotton under a mortgage for advances to make a crop, executed to them by said J. P. Caffey, which was dated June 9, 1882, reciting advances made to the amount of $650 and conveying "the entire crop of cotton and corn which may be produced on said plantation during the present year," as security for said advances, "and for all future indebtedness and advances made to me [him] by said Robinson & Ledyard."

On the trial, as the bill of exception shows, the plaintiffs offered this mortgage in evidence, appended to which was a certificate of acknowledgment, in statutory form, before a justice of the peace, June 13, 1882, and also a memorandum signed by the judge of probate, in these words: "Received this nineteenth day of June, A. D. 1882, and recorded in vol. 3 E, pages 48, 49, 50." The defendant objected to the admission of said mortgage in evidence, "because the indorsement thereon did not amount to the certificate required by law to show that said mortgage had been recorded in the office of said judge of probate, nor when it was received for record, and recorded;" and he duly excepted to the overruling of his motion. The plaintiffs proved, also, that a large balance, exceeding $2,000, was still due them for advances made under said mortgage; that the cotton in controversy "was raised by said Caffey, during the year 1882, on said Murray place, with hands, [laborers,] some of whom worked on shares, [for one-half of the crop,] Caffey furnishing the lands and teams, and advancing to said hands, while others worked for wages," also, "the receipt and sale of the cotton by the defendant, for Caffey, the payment of the money to him, and the value of the cotton." On cross-examination of one of the plaintiffs, the plaintiff brought out the account hereafter mentioned, showing that plaintiff had received other cotton from said Caffey during the year 1882, and the same had been credited on his account with them. The material facts shown by this account are stated in the opinion of the court, and it is unnecessary to repeat them here. "The plaintiffs then offered, in rebuttal, to introduce in evidence another mortgage executed to them by the defendant," which was dated March 4, 1882, conveyed "the entire crop of cotton and corn, and other produce, which may be produced on said plantation the present year," and purported to be given for advances made to the amount of $1,000, "and for all future indebtedness and advances made to me [him] by said Robinson & Ledyard;" the law-day being October 1, 1882. Indorsed on this mortgage was a certificate of its probate, in statutory form, made by the judge of probate of Montgomery county, dated March 4th, and an indorsement by the judge of probate of Lowndes county, in these words: "Received this eighth day of March, 1882, and recorded in vol. ZZ, pages 230-232." This defendant objected to the admission of this mortgage as evidence, but without stating any ground of objection. The defendant then read in evidence to the jury, against the objection of the plaintiffs, the conveyance of said plantation to Caffey by Murray and wife, which was dated July 22, 1881, and recited as its consideration the present payment of $10, and the obligation of said Caffey to pay an outstanding debt of $4,500 due to the estate of one Beasley, which was a lien on the land; and a mortgage of even date with the conveyance, executed by Caffey to said Murray, to secure the payment of his written obligation to deliver 40 bales of cotton on or before November 28, 1882, which conveyed the entire crop of cotton and corn raised on the plantation during the year 1882, and was conditioned to be void on the payment of the debt to the estate of Beasley.

This being substantially all the evidence, the court charged the jury, on the request of plaintiffs, "that they must find for the plaintiffs, if they believe the evidence." The defendant excepted to this charge, and then requested the following charges in writing, duly reserving exceptions to the refusal of each:

"(1) If Murray and wife conveyed to Caffey the land on which the cotton in question was raised, as shown by the deed in evidence, and Caffey, to secure the purchase money, in whole or in part, and as part of the same transaction, made the mortgage on the crop of cotton, as shown by his mortgage in evidence, then the legal title to said cotton was not conveyed to complainants by their mortgage from Caffey, and they cannot recover in this action.

"(2) If complainants have been paid, from the proceeds of the mortgaged property, an amount equal to, or greater than, the advances made by them to Caffey after the execution of the mortgage of June, 1882, and prior to the sale of the cotton in question by Marks, then plaintiffs cannot recover.

"(3) The mortgage of Caffey to complainants, executed prior to the planting of the crop of cotton, conveyed no title to the cotton crop, and the recording of such mortgage was no notice of a lien on the cotton crop; and all proceeds of the cotton crop mortgaged in June must be applied, so far as the defendant is concerned, to the advance secured thereby, up to the sale of the cotton by Marks; and if that debt was thereby paid, before the commencement of this suit, the complainants cannot recover.

"(4) Advances made by complainant after the sale of the cotton by Marks are no lien on such cotton.

"(5) If complainants were under no obligations by their contract to make future advances, then their mortgages are only good to the extent of actual amounts which they were bound to advance; and, if they have been paid that, they are not entitled to recover.

"(6) If the deed of Murray and wife to Caffey shows that Murray and wife occupied the place, and made the crop of 1881, and that Caffey, as part of the same transaction, to secure a debt due in the fall of 1882, mortgaged the crops to be made by him, it is for the jury to say, under the circumstances, whether it was the crop if 1882 or 1881 that Caffey conveyed to Murray, and, if the crop of 1882, then plaintiffs cannot recover.

"(7) If the crop raised by Caffey in 1882 was raised on shares, one-half to be Caffey's, and one-half to be the laborers', then the legal title to one-half of the crop was in such laborers, and would not pass under plaintiff's mortgage, and they cannot recover the same in this form of action.

"(8) It is the business of the plaintiff to make out his case to the satisfaction of the jury; and if he fails to show what, or what portion, he is entitled to recover, the jury should find for the defendant.

"(9) A mortgage to secure a specified amount, and to secure all future advances, indebtedness, and advances, not specifying any amount to be advanced, nor any purpose for which advances are to be made, and showing no obligation to make advances, nor any to receive them, is void as a mortgage to secure future advances, against persons dealing with the subject of the mortgage, without actual notice of such mortgage.

"(10) If Murray and wife conveyed the land on which the cotton in question was raised, as shown by their deed in evidence, and Caffey, as part of the same transaction, conveyed the crops to be raised by him on the lands in 1882, to secure certain debts therein mentioned, then the two papers are to be construed as one, and the mortgage by Caffey will be regarded as a reservation by Murray and wife, and will vest the legal title of the crops in Murray and wife, or one of them, and the plaintiffs cannot recover in this form of action.

"(11) If the jury believe, from the evidence, that the defendant had no notice of the plaintiff's title to the cotton in controversy, before he paid the proceeds of sale over to Caffey, then he is not liable in this action, notwithstanding the record of plaintiff's mortgage in the county where the crop was grown.

"(12) If the jury find, from the evidence, that the defendant did not authorize nor direct the sale of the cotton in controversy, then he is not liable in this action, although the facts might have authorized a recovery against Gayle, if he had been sued instead of Marks.

"(13) The recording of the mortgage made before the planting of the cotton crop is not notice under the registration law.

"(14) A mortgage to secure future advances, which the mortgagee is not bound to make, and the mortgagor is not bound to receive, is not operative as a mortgage, though recorded."

The refusal of these several charges, the charge given, and the rulings on evidence to which exceptions were reserved, are now assigned as error.

Gunter & Blakey, for appellant.

Troy, Tompkins & London, contra.

STONE C.J.

The present suit is an action of trover, and counts on an alleged tortious...