Pugh v. Harwell

• Decision Date: 12 November 1895
• Citation: 108 Ala. 486,18 So. 535
• Parties: PUGH ET AL. v. HARWELL ET AL.
• Court: Alabama Supreme Court

18 So. 535

108 Ala. 486

PUGH ET AL. v. HARWELL ET AL.

Supreme Court of Alabama

November 12, 1895

Appeal from circuit court, Tallapoosa county; N. D. Denson, Judge.

Statutory action of the right of property by Harwell & Clark against R W. Milner, defendant, and Pugh, Stone & Co., interveners. Plaintiffs had judgment, and interveners appeal. Reversed.

This was a statutory trial of the right of property to 600 bushels of corn levied upon under executions issued upon judgments recovered by Harwell & Clark against R. W. Milner, and to which claim was interposed by the appellants, Pugh, Stone &amp Co. Upon issue being made up between the plaintiffs in execution and the claimants, under the direction of the court, the evidence showed without conflict that the plaintiffs recovered three several judgments against the defendant R. W. Milner on October 25, 1892, and that the notes upon which these judgments were recovered were given for debts incurred by the defendant to the plaintiffs during the years 1890 and 1891, and that the executions were issued on said judgments on December 2, 1892, and levied the same day upon the corn in question, which was then in the possession of the defendant. The claimants introduced in evidence three several mortgages which were executed by the defendant R. W. Milner. One of these mortgages was made to secure a debt to Sturdivant Bros., evidenced by note for $2,865.44, and was executed on December 1, 1891, and the note was payable on October 15, 1892. This mortgage conveyed Milner's "entire crop of cotton, corn, oats, fodder cotton seed, and all other products raised by me, or that I may have raised by tenants or otherwise, during the year 1892," and several head of stock and other personal property which is described in the opinion. The second of the mortgages was executed on January 18, 1892, by R. W. Milner and J. W. Pace to Pugh, Stone & Co., to secure a note for $1,000, which was payable on October 1, 1892. The third mortgage was executed on May 9, 1892, by R. W. Milner and J W. Pace, to secure an indebtedness to Pugh, Stone & Co. for $150, which was payable on October 1, 1892.

Upon the examination of E. C. Pugh, one of the claimants, as a witness, he testified that at the time of the execution of the note and mortgage dated January 18, 1892, Milner was indebted to the claimants by open account, for advances made the preceding year, to the amount of $200, and that said mortgage was taken to secure such amount, and additional advances to be made by claimants to Milner during the year 1892; that on May 9, 1892, the claimants had advanced to Milner to the amount of the mortgage dated January 9, 1892, and that on said day, May 9, 1892, they took the second mortgage to secure such other advances as might be made; that up to October 20, 1892, the claimants had advanced to Milner goods and supplies to the amount of $1,528.09, and that on said day,-October 20, 1892,-at the instance and request of Milner, the claimants paid to Sturdivant Bros. $2,088.98, which was the balance then due on the mortgage executed by Milner to Sturdivant Bros., which mortgage was that day assigned to the claimants. This witness further testified that at the time of the execution of the two mortgages by Milner to the claimants there was no understanding or agreement that the mortgagor should dispose of or consume any of the property embraced in any of the mortgages for his own benefit, or for any other purpose; but that said mortgages were executed by Milner and taken by the claimants for the purpose of securing the payment by Milner of his debt to them; and that claimants never at any time consented to the disposition of any part of the property conveyed in the mortgage by Milner. This witness further testified that on January 11, 1893, the claimants transferred all three of the mortgages, and their interest in the mortgaged property, to one W. D. Cosby, in consideration of the payment by Cosby of the balance then due on the mortgage indebtedness to claimants, and that the claimants agreed to hold Cosby harmless, by reason of the claim suits arising from the levy upon the corn in question.

The testimony of R. W. Milner corroborated the testimony of Pugh. The plaintiffs proposed to prove by Milner that he had consumed the 1,000 bushels of corn, 2,000 bushels of cotton seed, and 4,000 bundles of fodder described in the Sturdivant Bros. mortgage after the execution of said mortgage. The claimants objected to this evidence, because it was not shown that the mortgagees or claimants had any knowledge or consented to the consumption of said corn, cotton seed, and fodder. The court overruled this objection, and the claimants excepted. The witness Milner then answered that he had used said corn "in feeding the stock embraced in said mortgage, and his family and his employés on the premises, in producing his said crop for the year 1892." The plaintiffs then asked the witness "if he had not, during that year, consumed or disposed of the 16 head of cattle and 50 head of hogs described in said mortgage?" The claimants objected to this question, upon the grounds as stated above. The court overruled the objection, and the claimants duly excepted. The witness answered that he "had slaughtered and consumed most of said cattle and hogs for the use of himself and employés on the farm in raising and harvesting his said crop for 1892." Plaintiffs then asked the witness, "if he did not, in the fall of the year 1892, after the mortgages were due, use and consume a part of his crop of corn grown during that year for himself and family?" Claimants objected to this question upon the grounds as stated above, and duly excepted to the court's overruling their objection. The witness answered that he "had used a portion of the corn crop in feeding stock and employés while engaged in harvesting the said crops of corn, cotton, etc., grown during that year." This witness further testified that he had no agreement or understanding with Sturdivant Bros., or with Pugh, Stone & Co., by which he was authorized to use or consume any of the property conveyed in the mortgages. Milner further testified that at the time of the transfer of the notes and mortgages, in January, 1893, by claimants to Cosby, he (Milner) was then indebted to Cosby in the sum of $175, aside from the amount paid by Cosby to Pugh, Stone & Co., and "that he then sold the mortgaged property then in existence to said Cosby on account of said indebtedness; and that in the spring of the year 1893 he bought back said property from said Cosby, executing a note and mortgage therefor, and for other supplies to make a crop that year; and in January, 1894, settled all of his indebtedness with said Cosby, who, at witness' request, marked the record of all of said mortgages satisfied."

Cosby, as a witness, testified to substantially the same facts as those stated by Milner, in reference to the transfer of the three mortgages and the sale and resale of the property by Milner and himself. Cosby further testified that the value of the property at the time of his purchase was $1,300; that one Smith held a senior mortgage on two of the mules covered by these mortgages, on which a balance of $135 was due; that said Milner had enough property, which was embraced in said mortgages, to pay off said indebtedness. This witness further testified that the claimants, Pugh, Stone & Co., after the transfer to him of their mortgages, had no connection whatever with the transactions between him and Milner.

The testimony of B. B. Sturdivant, one of the firm of Sturdivant Bros., who was examined as a witness, corroborated the testimony of Pugh, Milner, and Cosby as to the execution and transfer of the notes and mortgages. The witness Sturdivant further testifies that when Milner executed the mortgage to Sturdivant Bros., in 1891, "the mortgagor was allowed to retain possession of the personal property therein conveyed, and that it was his impression that Milner would consume the corn, fodder, and cotton seed, and that he supposed he would consume it." It was shown without conflict that at the time of the execution of the several notes and mortgages Milner was insolvent, which fact was known to the mortgagees.

J. L. Harwell, a member of the plaintiffs' firm, testified that Milner shipped from Dadeville, Ala., during the fall of the year 1892, several car loads of cotton seed, and sold the same; "that the seed were hauled in wagons from the Milner farm to the railroad depot, located about a half mile from the place of business of claimants." In this testimony Harwell was corroborated by J. J. Clark, the other member of the plaintiffs' firm.

This was substantially all the evidence. The court, at the request of the plaintiffs, gave several charges to the jury, to the giving of each of which the claimants separately excepted. Among other charges asked by the claimants, and to the refusal to give each of which claimants separately excepted, was the following: "If the jury believe the evidence in this case, they will find the issue in favor of the claimants." Upon the return of a verdict for the plaintiffs, the claimants made a motion for a new trial, and duly excepted to the court's overruling said motion. Judgment was rendered for the plaintiffs. Claimants appeal, and assign as error the rulings of the trial court upon the evidence, the giving of the charges requested by the plaintiffs, the refusal to give the charges asked by the claimants, and the overruling of the motion for a new trial.

H. J. Gillam, for appellants.

Thos. L. Bulger, John A. Terrell, and Geo. P. Harrison, for appellees.

McCLELLAN J.

The mortgage executed by Milner, the defendant, to Sturdivant Bros., bears date as of December 1, 1891. It was made to...