White v. First Nat. Bank

• Decision Date: 24 February 1938
• Docket Number: 5 Div. 259.
• Citation: 183 So. 875,236 Ala. 589
• Parties: WHITE v. FIRST NAT. BANK OF OPP ET AL.
• Court: Alabama Supreme Court

183 So. 875

236 Ala. 589

WHITE v. FIRST NAT. BANK OF OPP ET AL.

5 Div. 259.

Supreme Court of Alabama

February 24, 1938

Rehearing Denied April 21, 1938.

Rehearing Granted Oct. 6, 1938.

Further Rehearing Denied Nov. 3, 1938.

Appeal from Circuit Court, Randolph County; W. B. Bowling, Judge.

Action by J. B. White against the First National Bank of Opp, C. W Mizell, and R. J. Camp, in trover, trespass and in case for damages for wrongfully purchasing crops. From a judgment for defendants, plaintiff appeals.

Affirmed on rehearing.

p>Page J. J. Cockrell, of Talladega, and Pruet & Glass of Ashland, for appellant.

Mulkey & Mulkey, of Geneva, for appellees.

THOMAS Justice.

The plaintiff sued the defendants in trover, trespass, and in case. The defendants pleaded in short by consent. The court without a jury rendered judgment for the defendants.

The record discloses that one Carter was the owner of a farm in 1933 and 1935, which had been rented to tenants; that the landlord was indebted to the plaintiff White in a large sum and to defendant Mizell in a like large sum. He executed a mortgage on his crop grown in Randolph county to plaintiff White for the years 1934 and 1935; and also executed to defendant Mizell a mortgage on the crop for the year 1935. The mortgage relied upon by plaintiff was dated January 24 1935, and one of the mortgages to Mizell was dated February 8, 1935. The several mortgages to defendant Mizell submitted in evidence are dated, respectively, January 14, 1933, March 13, 1934, and February 8, 1935, and purport to embrace crops grown on these lands in the respective years of 1933, 1934, and 1935, in the counties indicated. The provisions in the mortgage of 1933 are as follows: "I or we also convey the entire crop raised by me or us or my or our families, or in which I or we may be interested in during the years 1933, 1934 and 1935, in Randolph and Clay county, Alabama, all rents and advances coming to me or us as landlord for each year, all or any of which property the mortgagee or assigns may after or before the maturity hereof and for the payment thereof, seize and sell as they may deem best, waiving all informalities and notice." The above mortgage was duly filed and recorded in Clay county on January 20, 1933, and in Randolph county on January 17, 1933. The pertinent provision in the mortgage of March 13, 1934, is to like effect, except that the county of Clay is omitted, and only "Randolph County, Alabama," is described and was filed for record on March 15, 1934.

The mortgage of February 8, 1935, embraced the entire crops grown "during the years 1935; 19--, 19--, in Randolph County, Alabama," and was filed for record on the 16th day of February, 1935.

The defendants also offered in evidence a real estate mortgage on his lands in Clay and Randolph counties dated as of February 6, 1932, for $24,371.99, payable to defendant Mizell, at the First National Bank of Opp, due on January 1, 1933, which contained the provision that: "* * all crops of every description raised or caused to be raised by me or under my direction during the years 1932, 1933, and 1934, in Randolph and Clay Counties, Alabama; all of my farming tools and implements; all of my live stock, personal property, and choses in action, not herein otherwise named; all rents or advances due or to become due to me as landlord from any tenant in said Counties or elsewhere, for 1932, 1933, 1934, and the following additional property: . . . . . "

It is insisted by appellees, and this was no doubt the theory on which judgment was rendered for defendant, that the portions of the crops due and to which Carter had the possession from respective tenants was to be treated as rents. Michie's Code, § 8807; First National Bank v. Crawford, 227 Ala. 188, 149 So. 228, 229. The mortgage executed on January 9 and due on March 13, 1931, became due before the crop of that year could be raised and gathered. The court said as to the statute:

"Under the provision of that section of the Code, the mortgage of an unplanted crop, if executed after January 1st of that current year, passes the legal title to the mortgagee from the moment of its execution. * * * This, of course, means to apply to such crops as may thereafter, during said year, be produced by the mortgagor, his agents, servants, or employees, * * * but not to crops grown by a tenant, for in the latter case the landlord had, and could have, no legal title to convey. The legal title would be in the tenant, subject to the lien of the landlord for rent. This case involves only crops grown by tenants.

"The mortgage in question was, however, efficacious to transfer to the petitioner the rent claims or rent obligations of the tenants on the land for that year. And this constituted a severance of the rents from the reversion; and the purchase by, or the conveyance of the mortgagor to, the daughter of the mortgagor, of the land, subsequent to the execution and recordation of the mortgage, could not defeat the rights of the mortgagee, as transferee of the rents, in a proper proceedings." The appellees insist that the foregoing record discloses that the several mortgages, as to crops described therein, were merely assignments by mortgagor of his rents for 1935. It is further insisted that the statute [[General Acts of Alabama, 1933, Ex.Sess. p. 131 (Act of 1935, p. 202, not being applicable)] does not deal with the right of the landlord to assign his rents for the year. Herren v. Burns, et al., 217 Ala. 692, 117 So. 417; Bennett v. McKee, 144 Ala. 601, 38 So. 129; Bank of Florala v. Williams, 230 Ala. 676, 163 So. 321; First National Bank v. Crawford, 227 Ala. 188, 149 So. 228.

Adverting to the conflict in the evidence as to whether the mortgage delivered to and filed with the judge of probate contained and embraced the crop for the year 1935 and was not so recorded, its filing for record operated as notice and was not ruled by its improper transcription. Chapman & Co. v. Johnson, 142 Ala. 633, 38 So. 797, 4 Ann.Cas. 559.

The witness Mizell testified as follows: "It all amounted to $28,913.10, and that mortgage covered the crops of 1935. I was right there when this mortgage was written. I did not write it but I superintended it and looked it over and handled the transaction. The year 1935 was in the mortgage at the time Carter signed it and it was there when I had it filed for record here. When I sent it for record it was still in the mortgage. I understand that the mortgage record does not show it was the 1935 crop. I renewed with Carter again in 1935."

The witness Traylor testified she was a clerk in the probate office and that to the best of her recollection the mortgage did not include the crops of 1935.

It was admitted by plaintiff and defendant that the crops in question were grown on the Carter lands in Randolph county during the year 1935; that Mizell sold to Camp a large portion of the personal property involved in this suit; and that the latter sold the same in the quantities and of the kind stated--cotton, corn, hogs, and mules. If this fact were material, it was decided by the trial court in defendants' favor.

The Alabama and general authorities to said effect are collected in 70 A.L.R. p. 595, where it is stated: "* * * an instrument affecting property, duly deposited with the proper officer for the purpose of having it recorded, is subsequently not recorded, or incorrectly recorded, through the neglect or fault of the officer. Whether a subsequent purchaser or attaching creditor of the property involved will be held to have constructive notice of the instrument notwithstanding the misfeasance of the...