McGee v. Fitzer
| Decision Date | 01 January 1872 |
| Citation | 37 Tex. 27 |
| Parties | C. L. MCGEE v. E. B. FITZER. |
| Court | Texas Supreme Court |
1. To secure payment for supplies advanced and to be advanced for the making of his crop, a tenant executed to plaintiff an instrument giving to him ““a special lien and mortgage” on the cotton and corn to be raised by the tenant that year. The instrument further declared that the cotton and corn ““were specially bound” to the plaintiff for the payment. Held, that though the instrument is not in the ordinary form of mortgages, yet it is substantially a mortgage on the crop, and the court below erred in charging the jury that it was not a mortgage nor a lien.
2. A cropper who was cultivating a farm under a contract, whereby he was to receive one-half of the crop grown thereon, after deducting from that half the value of all advances made by the owner of the land in furtherance of its cultivation, executed to a third party a mortgage upon the entire crop to be grown upon the farm that year. Held, that the mortgage created a lien in favor of the mortgagee, only upon that portion of the crop that remained to the mortgagor, after deducting one-half for the owner of the farm, and also sufficient to repay the advances made by the owner.
3. When a mortgagee of growing crops had notice, at the time of receiving his mortgage, that the owner of the land had been making advances to the mortgagor under a contract that he should have a lien on the crop to secure the payment of those advances, his lien under the mortgage will be subject to the claims of the party making the advances under the previous contract; and it makes no difference that the contract was not recorded, as the only object of registration is to give notice of the existence and contents of the instrument so recorded.
APPEAL from McLennan. Tried below before the Hon. J. W. Oliver.
There is no occasion for a statement of the facts.
No briefs for either side have reached the hands of the reporter.
We are of the opinion that the charge of the court, instructing the jury that the instrument claimed by appellant to be a mortgage, “is not, nor was it a lien on the cotton,” is erroneous. It is true, that the mortgage is not in full compliance with the statute, but it substantially follows the statute in most of its material requisitions, and at least it may be held to be a good common law mortgage. It was a mortgage, subject, however, to the prior lien of the appellant; for St. Clair, the appellant's own...
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