Hooper v. Payne

STONE, C. J. — In August, 1888, Hooper, the appellant, instituted a statutory aciion of ejectment against Araminta and G. W. Smith. The subject of the suit was a tract of land on which the said G. W. and Araminta Smith were then residing. Only the husband and wife were made parties defendant. [225] Hooper recovered in that action September 10,1890, and also recovered two hundred and fifty dollars damages, for use and occupation of the premises while they were withheld from him, Hooper. No part of this two hundred and fifty dollars was for the use and occupation of the purt of the land cultivated by R. A. Smith, to be explained presently. R. A. Smith is a son of G. W. and Araminta Smith, and was under twenty-one years of age. He, in 1890, and for three years before that time, cultivated a part of the tract of land which Hooper recovered in the action of ejectment. He lived or boarded with his parents, and the agreed statement of facts shows that, while the part of the land he cultivated was in the joint possession of himself and his mother, he cultivated on his own account, procured his own supplies, and had the entire management., control, ownership and disposition of the-crops grown by him. He, in January, 1890, mortgaged the-crop to be grown that year to Payne, to procure supplies to-enable him to make the crop, which gave rise to this suit. At that time, Payne knew that Hooper’s ejectment suit was pending against G. W. and Araminta Smith,- for the recovery of the land. The infancy of R. A. Smith is not, per sa, a controlling factor in this case. If a disability, it was personal to him, and could not be set up bv a mere stranger. — 3 Brick. Dig. 563, §§ 16, 17. Hooper sustained no relation to him, which authorized him to assert and maintain the proposition that G. W. Smith, his father, was the owner of the crop grown by the son. True, under ordinary circumstances, and in the absence of R. A. Smith’s mortgage to Payne, which secured the supplies with which the crop was made, it is possible the father could have claimed and disposed of the crop at any time while it remained under the control of the minor son. Stovall v. Johnson, 17 Ala. 14. He asserted no such right. The testimony, as we have seen, shows that R. A. Smith, with the consent of his father and mother, furnished his own supplies, and cultivated the crop with his own labor, and for his own use. We think the circumstances justify the presumption that the mortgage to Payne was with the father’s approbation. Coming to these conclusions, we hold that this case must be tried without any reference to the relationship between R. A. Smith and G. W. and Araminta Smith. When the ejectment suit was instituted, and continuously until he was evicted under the writ of possession, R. A. Smith was in possession, and cultivating the particular land on which the cotton was grown, the subject of this suit. He was not sued in the action, and hence was not concluded by the judg [226] ment recovered. As to him it established nothing, accomplished nothing. So far as the rights of these parties are concerned, that suit cuts no figure. The case then stands as if Hooper had dispossessed him without suit, and without process; a.mere forcible eviction. Such being the case, the right to the crop, in a personal action brought for its recovery, can not be determined by showing that the title to the land was in Hooper. To conclude R. A. Smith, he should have been made a defendant to the ejectment suit, — Smith v. Gayle, 58 Ala. 601, 604-5; Cooper v. Watson, 73 Ala. 252. The mortgage vested in Payne a sufficient title to maintain the suit. — Sess. Acts of Ala. 1888-9, p. 45. Affirmed.