Kilgore v. Jones

BROWN, J. (1) The undisputed evidence shows that Turner, who executed the mortgage to the plaintiff, had been in possession of the land upon which the cotton in controversy was. grown for ten years and had cultivated and paid the taxes on the land during that time, and was so in possession when he gave the mortgage to the plaintiff in the year 1912. This evidence shows that he had such interest in these lands when the mortgage was given as would authorize him to mortgage the crops to be grown thereon by him in the future. — Anders Mercantile Co. v. Rice Bros., 187 Ala. 468, 65 South. 388; Littleton v. Abernathy, 195 Ala. 65, 70 South. 282. (2) The question as to who owned the land was not a material inquiry. The inquiry should have been limited to what, if any, interest Turner had in the land at the time the mortgage was executed and delivered to the plaintiff. See Fields v. Karter, 121 Ala. 331, 25 South. 800. The evidence shows that Turner rented some land from Payton Rowland in 1914, and in February, 1914, he made an agreement with his daughter that she should have a crop on the Jordan Johnson place; that they worked “through and through” the entire crop. Turner furnished the teams and did all the plowing, and Emma Johnson, with Turner’s children, did the hoeing and assisted in gathering the crop. (3, 4) Under this agreement, Turner and Emma Johnson were tenants in common of the entire crop. — Hairslip v. Bran *474 num, 198 Ala., 73 South. 464; Haynes Merc. Co. v. Bell, 163 Ala. 326, 50 South. 311; Hendricks v. Clemmons, 147 Ala. 590, 41 South. 306. And if Emma Johnson had knowledge or notice of the plaintiff’s mortgage when she entered into the agreement, bier rights were subordinated to the plaintiff’s lien under the mortgage. — Hairslip v. Brannum, supra; Mayer v. Taylor, 69 Ala. 403, 44 Am. Rep. 522. (5) The mortgage was executed on the 23d day of February, 1912, and was filed for record in the probate office of St. Clair ■county, and duly recorded there. The recordation of the mortgage, if St. Clair was the county of mortgagor’s residence, operated as notice to all persons of its contents and of the lien or title of the plaintiff thereunder. — Argo v. Sylacauga Merc. Co., 12 Ala. App. 442, 68 South. 534. It does not appear from the record that the Jordan Johnson place was situated in St. Clair county. The court erred in not sustaining the plaintiff’s objection to the question eliciting evidence as to who held the legal title to the lands on which Turner resided. It was also error to give the affirmative charge for the defendant. Reversed and remanded.