Pelham Sitz & Co. v. Herzberg-Loveman Dry Goods Co.

• Decision Date: 14 October 1915
• Docket Number: 748
• Citation: 194 Ala. 237,69 So. 881
• Court: Alabama Supreme Court
• Parties: PELHAM SITZ & CO. v. HERZBERG-LOVEMAN DRY GOODS CO.

69 So. 881

194 Ala. 237

PELHAM SITZ & CO. v. HERZBERG-LOVEMAN DRY GOODS CO.

No. 748

Supreme Court of Alabama

October 14, 1915

Appeal from City Court of Gadsden; John H. Disque, Judge.

Action by the Herzberg-Loveman Dry Goods Company against Pelham Sitz & Co. Judgment for plaintiff, and defendants appeal. On transfer from the Court of Appeals under section 6, Act April 18, 1911 (Acts 1911, p. 449). Affirmed.

Culli &amp Martin, of Gadsden, for appellants.

McCord & Davis, of Gadsden, for appellee.

MAYFIELD J.

Appellee recovered damages against appellants for the destruction of a lien on six bales of cotton. Appellee claimed through a mortgage executed by one C.A. Walker. Appellants claimed as purchasers from the wife of C.A. Walker. There were two material and disputed questions involved on the trial: (1) Whether the cotton belonged to the husband or to the wife and (2) whether or not the wife had authorized the husband to execute a mortgage on the cotton.

The husband and wife had lived on the place upon which the cotton was grown for a long time, and had previously executed mortgages to appellee as to the crops grown on the same lands, and no claim to the crops had ever theretofore been made by the wife. In fact, there seems to be no dispute that the crops grown on the lands in question for previous years were the property of the husband, with the exception that there may be some evidence tending to show that he owed the wife rent.

There seems to have been no paper title conveying the land to either the husband or the wife until after the mortgage was executed, when a deed was executed conveying it to the husband; and subsequently--and even subsequent to the bringing of this suit--the husband conveyed the land to the wife. The claim is made that the wife originally purchased the lands, or that they were purchased for her by her father that a deed had been made, though it was never recorded, and was lost, that several years thereafter a deed was intended to be made in lieu of this lost deed, but that, by mistake of the draftsman, it was made to the husband, instead of to the wife, and that it was for this reason that the husband conveyed to her after this suit was brought.

It appears that the cotton in question was grown upon this land and was produced by the children of the husband and the wife, was carried to the gin by a son, and was ginned as the cotton of the husband and stored in a warehouse as the husband's cotton, and that receipts therefor were issued in the name of the husband; but it is claimed by appellants that the cotton was sold to them by the husband as the cotton of his wife, and not his own.

The trial resulted in favor of the mortgagee for the amount of the mortgage debt; and we find no reversible error in this record.

There are 113 assignments of error, but there are no new or novel questions of law involved. Many of the exceptions go to rulings of the trial court in allowing the deeds and mortgages above referred to to be introduced in evidence; but the only objection insisted upon is that they were irrelevant and immaterial. There is nothing in these objections, though they were very material to the main issues, to show who owned the cotton in question. It was likewise proper to allow proof that the mortgagor had cultivated the land, that cotton was grown thereon, that children of the mortgagor husband hauled it to the gin and to the warehouse, and that receipts therefor were given in the name of the father, and that the children spoke of the cotton while in their possession as that of the father. It is conceded that the children handled the cotton as agents either of the father or of the mother; and their declarations, while the cotton was in their control and custody, as to the character of the...