Woolsey v. Jones

• Decision Date: 14 May 1888
• Citation: 4 So. 190,84 Ala. 88
• Parties: WOOLSEY ET AL. v. JONES ET AL.
• Court: Alabama Supreme Court

4 So. 190

84 Ala. 88

WOOLSEY ET AL. v. JONES ET AL.

Supreme Court of Alabama

May 14, 1888

Appeal from city court of Montgomery; T. M. ARRINGTON, Judge.

An action was brought by Woolsey & Sons against W. B. Jones &amp Bros. for the alleged conversion of cotton, upon which defendants claimed that they had a prior mortgage, given by one Houser. Defendants obtained judgment, and plaintiffs appeal. The facts concerning these mortgages, and by whom the said cotton was raised, and the question of usury, appear in the opinion. The court gave the following charges at the request of defendants, and to the giving of each of them plaintiffs separately excepted: (1) "The statement introduced by defendants as to what Houser would swear, if he were present, must be taken by the jury as though Houser were present and swore to it before the jury." (2) "It is incumbent on plaintiffs to show to the satisfaction of the jury that the cotton in controversy was raised by Houser; and unless this is done by them, plaintiffs cannot recover." (3) "If the jury find that the note and mortgage of May 1, 1884, was given as a consideration and contract to pay more than eight per cent. per annum, or such consideration then plaintiffs cannot be regarded as bona fide purchasers or creditors, as to said mortgage and debt of May 1, 1884, as against defendants' mortgage." (4) "If the jury find that the cotton in controversy was grown on the land that Houser had rented from Dobson, and which he (H.) had turned over to the daughter of Sophie Jones in payment for their labor on H.'s land, then such cotton would not be subject to either of plaintiffs' mortgages." The several rulings of the court, and the giving of these charges, are assigned as error. Rule 16 of practice is as follows: "The party applying for a continuance of any civil action must state in the affidavit the names and places of residence of the absent witness or witnesses; what diligence he has used to obtain his or their testimony, and what he expects to prove thereby. If the adverse party will admit what it is so alleged such absent witness will swear, the cause shall not be continued by reason of the absence of such testimony. After the first continuance, such other showing must be made, and such terms may be imposed, as to the court shall seem proper."

Troy, Tompkins & London, for appellants.

Graves & Blakey and Williamson & Holtzclaw, for appellees.

SOMERVILLE J.

The first charge given by the court at the request of the defendant asserted that the statement introduced by the defendant as to what the absent witness would swear, had he been present, should be taken by the jury as if the witness were actually present, and had testified in person to the facts before the jury. This was unquestionably correct, and any other view of the law would practically nullify the sixteenth rule of practice, relating to continuances in nisi prius causes. Crawford v. State, 44 Ala. 382.

2. The two mortgages executed to the plaintiffs by Houser, in January and May of the year 1884, which are claimed to confer a lien on the cotton in controversy in favor of plaintiffs, can be construed to cover only the crop of the grantor himself, or such as might be raised by him, or his employees, on land in which he had some interest or estate. The language of these instruments clearly imports this construction, and is not susceptible of any other meaning. The mortgages cannot, therefore, embrace within their terms cotton derived from any other source. The second and fourth charges are, in our opinion, free from error, when construed in reference to the evidence, which was conflicting on the point as to whether the cotton in controversy was a part of the crop raised by Houser, or whether he obtained it by purchase from one of the tenants for advances made during the year. If the jury were satisfied that the latter view was a correct inference from the evidence, the lien of the plaintiffs' mortgages would no more attach to the cotton than if the mortgagor had gone into the market and purchased it from a stranger. The land leased to the tenant Sophie Jones was her own for the purposes of occupancy and cultivation, and was, to this extent, no longer the land of Houser One of the mortgages, it is true, transfers the "rents" of the mortgagor, but there is no evidence tending to show Houser had any rents due him and unpaid.

3. The mortgage executed by Houser to defendants also covers his entire crops of cotton grown during the year 1884 on the plantation cultivated by him in Autauga county-the same crop that was mortgaged to plaintiffs. One of the questions in the case is the relative priority of the lien created by this instrument and that created by the plaintiffs' mortgages to which we have above alluded. This inquiry arises only on the supposition that the cotton delivered to ...