Pinckard v. Cassels

• Citation: 195 Ala. 353,70 So. 153
• Decision Date: 04 November 1915
• Docket Number: 7 Div. 751
• Parties: PINCKARD et al. v. CASSELS.
• Court: Alabama Supreme Court

70 So. 153

195 Ala. 353

PINCKARD et al. v. CASSELS.

7 Div. 751

Supreme Court of Alabama

November 4, 1915

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

Action by W.D. Pinckard and Carl Lay against C.G. Cassels in trover and conversion for two bales of cotton. Judgment for defendant, and plaintiff Pinckard appeals. Transferred from the Court of Appeals under section 6, Act April 18, 1911 (Acts 1911, p. 449). Reversed and rendered.

George D. Motley, of Gadsden, for appellant.

Culli &amp Martin, of Gadsden, for appellee.

THOMAS J.

The complaint contains counts in trespass and in trover. The defendant interposed the plea of the general issue. The cause was tried without a jury, and there was neither a special finding of facts nor request for such special finding of facts. The judgment was for the defendant.

Our court has declared that when a case is tried without a jury and there is no special finding of facts, nor request therefor, the conclusion of the trial judge has the effect of the verdict of a jury, and that, if it was supported by the evidence, it is not subject to review. Code 1907, §§ 5359, 5360, 5361; McIntyre Lumber & Export Co. v. Jackson Lumber Co., 165 Ala. 268, 275, 51 So. 767, 138 Am.St.Rep. 66; Montgomery Lodge No. 596, B.P.O.E., v Massie, 159 Ala. 437, 49 So. 231. The deciding question was one of fact, and on this appeal, the judgment of the trial court having the effect of the verdict of a jury, the pertinent inquiry is whether there was sufficient evideuce to support the judgment. Briel v. Exchange National Bank, 180 Ala. 576, 578, 61 So. 277.

If when defendant's mortgage was executed by W.H. Edwards on May 23, 1913, he had no rent agreement or contract, express or implied, for the land on which the cotton in controversy was grown in 1914, defendant's mortgage was not admissible as evidence. Windham v. Stephenson, 156 Ala. 341, 47 So. 280, 19 L.R.A. (N.S.) 910, 130 Am.St.Rep. 102. The mortgagor must own, or have some interest in, the land on which the crops are grown, to create a lien on the crops to be grown by the giving of a mortgage thereon, notwithstanding the mortgage, when given, covers crops to be grown each successive year until the debt evidenced thereby is paid. The mortgagee can acquire no lien on the crop of a subsequent year, raised on land in which the mortgagor had no interest at the time of the execution of the mortgage. Christian & C.G. Co. v. Michael & Lyons, 121 Ala. 87, 25 So. 571, 77 Am.St.Rep. 30; Karter v. Fields, 140 Ala. 364, 37 So. 204; Paden v. Ballenger, 87 Ala. 576, 6 So. 351; Ala. S. Bank v. Barnes, 82 Ala. 619, 2 So. 349; Varnum v. State, 78 Ala. 30; Burns v. Campbell, 71 Ala. 278; Mayer v. Taylor, 69 Ala. 403, 44 Am.Rep. 522; Grant v. Steiner, 65 Ala. 499. The statute of this state as to unplanted crops is as follows:

"A mortgage of unplanted crops of agricultural products, executed on or after the first day of January of the year in which such crops are grown, conveys the legal title thereto in all respects as if such crops were already planted."

This is the codification of the act approved February 23, 1889 (Acts 1888-89, p. 45), the title of which was "To enable planters and farmers and crop growers to convey by mortgage unplanted crops," and which contained the proviso:

"That no such mortgage shall be valid so as to convey the legal title, if executed prior to the first day of January of the year in which the crop is grown."

This act was inserted in the Code of 1896, as section 1064, which section was readopted in the Code of 1907 as section 4894, in the same language. Since this statute, it has been held that a mortgage executed after the 1st of January conveys the legal title to the unplanted crop, but that a mortgage executed before that date conveys only an equitable title. Shows v. Brantley, 127 Ala. 352, 28 So. 716. This statute was first construed by Chief Justice Stone, in Hooper v. Payne, 94 Ala. 223, 10 So. 431, and the construction there rendered was followed by Chief Justice Brickell in Keyser v. Mass. & Schwartz, 111 Ala. 390, 21 So. 346, and by Chief Justice McClellan and Dowdell in Woods v. Rose & Co., 135 Ala. 297, 33 So. 41, and Gaston v. Marengo Improvement Co., 139 Ala. 465, 467, 36 So. 738, respectively.

In Sellers & Orum Co. v. Hardaway, 66 So. 460, the effect of section 4894 of the Code, on the title, where the mortgage was executed before January 1st, was not considered. The only question there decided was that a mortgage upon cotton to be grown is not valid, where, at the time of the execution of the mortgage, the mortgagor had no valid lease of the land on which the crop was to be raised, but was merely negotiating for a lease, because the crop had no potential existence. The action was by the assignee of a mortgagor, against the purchaser of cotton from the tenant, and the complaint is "grounded upon the destruction of the asserted lien" of the mortgage. It was not necessary in that case to decide whether the lien created by the mortgage was legal or equitable. Such were the facts for decision in Windham & Co. v. Stephenson & Alexander, 156 Ala. 341, 47 So. 280, 19 L.R.A. (N.S.) 910, 130 Am.St.Rep. 102.

When a mortgage is of an unplanted crop, any person who converts it to his own use after it is gathered, with actual or constructive notice of the lien, is liable to the mortgagee in an action for destruction of the lien (Rees v. Coats, 65 Ala. 256), or, in a proper case, in detinue, for the specific product, or in trover for its conversion ( Ballard v. Mayfield, 107 Ala. 396, 18 So. 29; Woods v. Rose & Co., 135 Ala. 297, 33 So. 41; Sellers & Orum Co. v. Hardaway et al., supra).

In the case at bar the action is for the value of two bales of cotton, and is brought by mortgagees, Pinckard & Lay, against C.G. Cassels, another mortgagee, of one W.H. Edwards. The undisputed facts were that on June 23, 1914, Edwards gave Pinckard & Lay a mortgage, due October 15, 1914, on his "entire crop of corn cotton and produce, and all rents accruing *** for the year 1914, and each succeeding year in the county in which" the mortgagor then resided, "until paid," and that this mortgage was on the day of its date filed for record in the probate office of Etowah county and duly recorded.

The defendant offered in evidence, against the objection and exception of the plaintiffs, a mortgage, duly recorded in the probate office of Etowah county, from W.H. Edwards to C.G. Cassels, conveying certain specifically described personal property, and "also my entire crop of cotton, cotton seed, corn, fodder, hay, wheat, oats, rye, peas, sorghum, and all other produce which I may raise or cause to be raised, or which may accrue to me for rent on my own or any other land in Etowah county, Alabama, during the year 1913, and succeeding years until said secured debt is paid in full," and a mortgage from Edwards to defendant, duly recorded in said county, of date June 6, 1914, conveying specific personal property, with a crop clause of like terms, for the year 1914, and those in the said mortgage for 1913, "and each succeeding year," etc.

Under the count for trover, there was presented the question of the right of possession of the two bales of cotton when they were received by the defendant. In ...