Paden v. Bellinger

• Citation: 87 Ala. 575,6 So. 351
• Parties: PADEN ET AL. v. BELLINGER ET AL.
• Decision Date: 12 June 1889
• Court: Supreme Court of Alabama

6 So. 351

87 Ala. 575

PADEN ET AL. v. BELLINGER ET AL.

Supreme Court of Alabama

June 12, 1889

Appeal from circuit court, Etowah county; JOHN B. TALLY, Judge.

This is an action brought by John S. Paden & Co. against Bellinger &amp Ralls, for the unlawful conversion of certain cotton. There was verdict and judgment for plaintiffs, and defendants appeal.

Amos E. Goodhue, for appellants.

R A. D. Dunlap, for appellees.

MCCLELLAN J.

This is an action on the case, for the wrongful conversion by John S Paden & Co. of certain cotton on which the appellees, plaintiffs below, claim to have an equitable mortgage. According to the unbroken current of our decisions, as well as by the weight of authority in other states, it is essential to the creation of such an incumbrance that its subject-matter should have a potential existence, as distinguishable from a mere possibility or expectancy on the part of the contracting parties that it will come into being. While the thing itself need not have identity or separate entity, yet it must at least be the product or growth or increase of property which has at the time a corporal existence, and in which the mortgagor has a present interest,-not a mere belief, hope, or expectation that he will in future acquire such an interest. Varnum v. State, 78 Ala. 30; Mayer v. Taylor, 69 Ala. 403; Grant v. Steiner, 65 Ala. 499; Burns v. Campbell, 71 Ala. 288; Low v. Pew, 108 Mass. 347; Otis v. Sill, 8 Barb. 112; Pennock v. Coe, 23 How. 117; Herm. Chat. Mortg. § 46.

The mortgage involved here was executed November 15, 1886. It in terms conveys the "entire crop" of the mortgagor "to be grown in the year 1887 on my own land or other land in Etowah county." The cotton alleged to have been converted was grown on land which did not belong to the mortgagor when the instrument was executed. Whether it was the product of land in which the mortgagor had an interest at that time the evidence is conflicting. The testimony of the mortgagor tended to show that he had no interest whatever in the land until after November 15, 1886. The testimony of other witnesses tended to establish the fact of such interest at that time. It was the province of the jury to reconcile this conflict, if they could, and, failing in that, they had a right to accept as true either aspect of the evidence. The affirmative charge given at plaintiff's request took away this right. This was error which must work a...