Phillips-Neely Mercantile Co. v. Banks

• Decision Date: 21 June 1913
• Citation: 63 So. 31,8 Ala.App. 549
• Parties: PHILLIPS-NEELY MERCANTILE CO v. BANKS.
• Court: Alabama Court of Appeals

63 So. 31

8 Ala.App. 549

PHILLIPS-NEELY MERCANTILE CO v. BANKS.

Court of Appeals of Alabama

June 21, 1913

Rehearing Denied July 8, 1913

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

Action by the Phillips-Neely Mercantile Company against T.C. Banks. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

J.R Forman, of Gadsden, for appellant.

Goodhue & Brindley, of Gadsden, for appellee.

THOMAS J.

During the month of August or September, 1910, one J.F. Sanford verbally rented from Luke Stephens a farm in Etowah county Ala., for the year 1911. He was to get possession on January 1, 1911, or sooner if the tenant for 1910 should before that date finish up his crop and move. During Christmas week of 1910 the tenant did move, and Sanford then entered into possession of the premises, and raised a crop of cotton thereon in 1911, a part of which he sold and delivered to the defendant, T.C. Banks. The plaintiff, appellant here, brought this suit against said Banks, seeking thereby to recover from him for the destruction of an alleged lien claimed by it on the cotton so sold him by the said J.F Sanford.

This lien arises, if at all, by virtue of a mortgage executed to plaintiff by said J.F. Sanford on October 29, 1910, which was duly recorded in the probate office of Etowah county on the 2d day of November, 1910, and which covered, among other property, "the entire crop of cotton, corn, etc., which the said Sanford might raise, or cause to be raised, or which might accrue to him as rent, on his own or any other lands in Etowah county, Alabama, during the year 1911." It will be observed that this mortgage was executed after said Sanford had made the said parol rental contract with Luke Stephens, but before said Sanford got possession of the rented premises, and before the commencement of the rental term. It is clear that contract of renting, being only verbal, and not to be performed within 12 months from its making, was obnoxious to subdivision 1 (Code 1907, § 4289) of our statute of frauds. White v. Levy, 93 Ala. 484, 20 So. 164; Oliver v. Gold Life Ins. Co., 82 Ala. 417, 2 So. 445; Martin v. Blanchett, 77 Ala. 288; Bain v. McDonald, 111 Ala. 269, 20 So. 77. It being so, and that, too, at the time that the mortgage was executed to plaintiff on the crops to be grown on the premises embraced in it, did Sanford, the mortgagor and lessee under said contract, have by virtue of the contract such an interest in the lands covered by it that he could make a valid mortgage of the crops to be grown thereon for the year of the lease, when such crops were in fact subsequently grown by him thereon, in pursuance of the contract of lease--neither he nor the lessor, Stephens, ever having attempted to avoid the contract, but each having fully performed it according to its terms, before this suit was brought by plaintiff, the mortgagee, against Banks, a third party, for the conversion of a part of such crops? The lower court held that the mortgage conveyed no interest in the crops, and accordingly there was verdict and judgment for defendant. In this, we are of opinion the court was in error.

While it is true that in order for a mortgage to create a lien on crops to be grown in the future, the mortgagor must, at the time of the execution of the mortgage, have owned or had some interest in the lands on which the crops are to be grown ( Windham v. Stephenson, 156 Ala. 345, 47 So. 280, 19 L.R.A. [ N.S.] 910, 130 Am.St.Rep. 102; McNeill v. Henderson, 1 Ala.App. 405, 55 So. 269; Farmers' Union v. McIntosh, 1 Ala.App. 407, 56 So. 102; Young v. Hall, 4 Ala.App. 603, 58 So. 789), yet we think that an interest sufficient to this end may be created by a contract for the lease of the lands, although the contract is of such a character that, on account of the statute of frauds, it might be subsequently avoided, before its performance, by either of the parties to it, without incurring a legal liability to the other (Kling v. Tunstall, 124 Ala. 268, 27 So. 420). Such a contract is not void, but is merely voidable. Bain v. Wells, 107 Ala. 562, 19 So. 774; Cooper v. Hornsby, 71 Ala. 62; Comer v. Sheehan, 74 Ala. 452; Shakespeare v. Alba, 76 Ala. 351. The case of Prestwood v. Carlton, 162 Ala. 346, 50 So. 254, cited by appellee, does not decide to the contrary.

The fact that the contract might have been avoided does not destroy its efficacy or vitality when it has not been avoided, but has been, as here, fully performed. Kling v Tunstall, supra. By that...