Windham & Co. v. Stephenson & Alexander

• Decision Date: 30 June 1908
• Citation: 156 Ala. 341,47 So. 280
• Parties: WINDHAM & CO. v. STEPHENSON & ALEXANDER.
• Court: Alabama Supreme Court

47 So. 280

156 Ala. 341

WINDHAM & CO. v. STEPHENSON & ALEXANDER.

Supreme Court of Alabama

June 30, 1908

Appeal from Circuit Court, Lawrence County; D. W. Speake, Judge.

Action by Windham & Co. against Stephenson & Alexander. Judgment for defendants, and plaintiffs appeal. Affirmed.

D. C Amon and J. M. Irwin, for appellants.

G. O Chenault, for appellees.

HARALSON J.

The plaintiffs, Windham & Co., sued the defendants, Stephenson &amp Alexander, in an action on the case, to recover $100 damages for an alleged wrongful removal and disposition of 2 bales of cotton and 50 bushels of corn, upon which plaintiffs claimed to have a lien by virtue of a mortgage executed on the 18th of February, 1903, by Charles Daugherty to Tollie Hodges, and which was by the latter, for value received, transferred, on the 19th of February, 1903, to the plaintiffs. The mortgage was, to repeat its language, on "the entire crop of cotton and corn, fodder, grain or other articles of any kind, raised or to be raised by me and family during the year 1903, also the crops raised each successive year until the debt hereby secured is paid in full."

The undisputed evidence shows that Charles Daugherty was farming in 1903, on land rented by him from said Hodges; and on February 18th of that year he executed to said Hodges a note for $100, payable on the 15th of October following; and to secure said note, he, at the same time, executed a mortgage on his crop of that year, which note and mortgage, as stated, were for value transferred the day after their execution, to the plaintiffs, and it is under this mortgage they claim to be entitled to prosecute this suit.

As stated, said mortgage, besides conveying his crop of that year, contained the clause--"Also the crops raised each successive year, until the debt hereby secured is paid in full." It is under the latter clause that the plaintiffs claim a lien upon the cotton and corn in controversy.

This clause, prima facie and presumptively, upon its face, in connection with the other facts of said mortgage conveying the crops of that year, would refer to the crop in after years grown on the same premises that the crop of 1903 was raised upon.

At the date of the execution of said mortgage Daugherty owned no land of his own, and was renting land upon which he was then cropping from said Hodges.

The cotton and corn to which the suit relates were raised by Daugherty in the year 1903,--three years after the crop which he was raising, in 1903, on land rented from Hodges,--and on land rented in 1906 from one W. C. Wallace. At the time of the execution of said mortgage,--February 18, 1903,--as appears and as stated, Daugherty not only owned no lands of his own, and had no others rented, but had no interest in the lands, by lease or otherwise, on which he farmed in 1906, which lands he afterwards rented from said Wallace, and on which the cotton and corn in controversy were raised. The defendant bought from said Dougherty, as is shown without conflict in evidence, the said 2 bales of cotton and 50 bushels of corn, part of the crop raised by him in 1906, on the Wallace lands, shown to be worth $100.

It may be stated in passing, that plaintiffs aver, "which said cotton and corn defendants sold and removed, or caused to be removed beyond plaintiffs' reach, or caused the same to be so mixed with other corn and cotton as to be indistinguishable therefrom, by reason of which said unlawful acts of the defendants, plaintiff is prevented from enforcing his said lien thereon under his said mortgage."

Waiving for the present, consideration of the question as to whether plaintiffs had a lien on said crops, it would seem that they were bound to make the truth of this averment in their complaint, reasonably to appear. There is, however, an absence of any evidence in support of...