Stearns v. Gafford

STONE', J. A mortgage may be made of a crop after-wards to be planted; and such mortgage, being of personalty, may be made without writing. — 2 Brick. Dig. 248, §§ 5,9, 11; Booker v. Jones, at present term ; Morrow v. Turney, 35 Ala. 131; Brooks v. Ruff, 37 Ala. 371. What precise words are required to constitute a mortgage, [546] can not be absolutely affirmed. There must be a debt, legal liability, or obligation, actually existing, or, at the time, proposed to be incurred, and afterwards actually incurred, or there can be no valid mortgage. But, when there is such debt, legal liability, or obligation, then any agreement or language, by which property is sufficiently identified, and designated as a security for its payment, will amount to a mortgage. Security is the aim, the essence of a mortgage ; and when property is sufficiently described, set apart, and charged by contract with the burden of a debt, this contains all the essential elements of a valid mortgage, — See 1 Hilliard on Mortgages, 2, 4; Jewett v. Warren, 12 Mass. 300; Howes v. Crane, 2 Pick. 607. Any conveyance, “intended by the parties, at the time of making it, to be a security for the payment of money, or the doing of some prescribed act,” is a mortgage. — 2 Wash. Real Prop. 43-47. In the case of Robinson v. Mauldin, Montague & Co., 11 Ala. 977, the grantor, who was a planter, was indebted to his commission merchants, and, to secure them, conveyed to a trustee, by trust deed, “ fifty thousand pounds of the first picking of the crop of 1842, then growing on his plantation, to be neatly ginned, and packed in bales, ready for market; and upon the failure of [the planter] to pay the note at maturity, the trustee was authorized to take said fifty thousand pounds of cotton, and ship the same to [the commission merchants], to be sold for the payment of the note,” &c. Before the cotton was delivered, or gathered, another creditor of the planter obtained judgment against him, and had execution placed in the hands of the sheriff. The cotton was then ginned and packed, but still on the plantation, when the sheriff levied on some ninety bales of the cotton, not entirely of the first picking. The question was, whether the trust deed conveyed the title of the cotton, so as to place it beyond the lien of the execution. It was decided that it did; the court holding that “ the terms, ‘ first cotton which may be gathered,’ means of the early, in contra-distinction to the late gathering; and therefore, when ninety-one bales, of the early gathering, were ginned and baled, the lien attached, although there was then, in its crude state, a quantity of cotton not separated from the seed, gathered earlier in the season than that which composed the, ninety-one bales.” The testimony for defendant in the present case, and the hypothesis of the charge based upon it, define and describe the cotton pledged for the debt, quite as clearly as did the deed of trust in the case of Robinson v. Mauldin, supra. The proof tends to show that the cotton in controversy in the [547] present suit may justly be classed as “of the first cotton that may be gathered,” under the ruling in the case from which we have quoted above. The cotton had reached its proper destination, when it was placed in possession of Mr. Gafford, in whose favor the pledge or promise was made. Being in his possession, and he having a lien upon it, we think Stearns cannot maintain an action against him for the recovery of the cotton. We find no error in the charge of the Circuit Court, and the judgment is affirmed.