Bryan v. Smith

PHELAN, J. Tbe instrument made by Willis Pope in favor of tbe plaintiff, and delivered to bis agent, Turner, in Columbus, Miss., on tbe 24th September, 1849, by wbicb be “assigned,” as it reads, to plaintiff, thirty bales of cotton described, to secure bim for money then and before that time advanced, to tbe amount of thirteen to fifteen hundred dollars, was unquestionably a contract for tbe pledge of cotton, to secure tbe payment of money advanced. Whether tbe contract was actually executed by tbe delivery of tbe instrument to plaintiff’s agent, and that fact amounted in law to a delivery of tbe cotton itself, so that plaintiff could, without more, have maintained detinue or trover for it, we need not, under tbe facts of this case, decide. If it should' be construed to be nothing more than an executory contract for tbe pledge of cotton, that is, to place certain cotton in tbe plaintiff’s bands to secure tbe repayment of tbe money advanced, tbe testimony clearly shows that, before tbe attachment of Bush & Co., under wbicb the defendant as sheriff seeks protection, was issued or levied, tbe whole thirty bales bad been delivered according to agreement by Pope, at tbe warehouse in Memphis, for and on account of the plaintiff, Smith. Tbe possession and tbe right of possession, with a lien upon tbe cotton to tbe extent of bis advances, was from that time [539] vested in the plaintiff, and gave him such a title as would enable him to bring detinue or trover against any one who should disturb bis possession. The attachment of Bush & Co. against Pope could not, of course, be rightfully levied upon it, and would afford no protection to the act of the sheriff in seizing or retaining it. Desha v. Pope & Son, 6 Ala. 690, and cases there cited. The statutes of Mississippi in respect to registration, were relied on, it seems, in the court below. The substance of those statutes, so far as they can possibly be supposed to have any bearing on this case, lays down the rule, that all deeds and conveyances, whether for real or personal property, may be recorded within three months after their execution, and have effect from the date of their execution; but, that deeds in trust and mortgages shall have effect only from the time when they are delivered to the clerk for registration, as against subsequent purchasers for valuable consideration without notice, and creditors. Hutchinson’s (Miss.) Code 605, 606. We do not see that these statutes can have any application to the case. The instrument was neither a deed in trust nor a mortgage. It was either an agreement to pledge, or an actual pledge of the cotton; and if the former, the agreement had been executed, by the delivery of the cotton before the attachment of Bush & Co. was issued. There was no sort of necessity for a registration of this instrument, to protect Smith in such a case; and that the instrument was made in Mississippi, and the cotton delivered and afterwards levied on in Alabama, could make no difference as respects the rights of these parties. There was no valid objection to the competency of the witness Turner. His contract was to receive commissions on all the cotton he procured as agent, and shipped to Smith in Mobile. This cotton had been shipped, and his commissions paid. Whatever may be the result of this suit, it is quite clear, that these commissions cannot be recovered back from him. His liability over to Smith as his agent in making the advances, and not seeing that the cotton was first secured, if that were so, would not create such an interest as would affect his competency in this case; that must be a direct and [540] certain interest, either in the event of the suit, or in the record ; and he has neither. Bean v. Pearsall, 12 Ala. 592, and cases there cited. As to the witness Willis Pope: so far as he has an interest in the event of this suit, that interest lies on the other side; since, if the cotton is held to be liable to the attachment of Bush & Co., it would go to extinguish another debt of his after having already paid one due to Smith for advances. Holman v. Arnett, 4 Por. 63. Prom what has been said, it follows that there was no error in admitting either of these witnesses to testify; that the charge given by the court was correct, there being no conflict in the testimony; and the charge asked by the defendant below was correctly refused. There is no error in the record, and the judgment below is affirmed.