Thompson & Co. v. Union Warehouse Co.

HEAD,.!. Detinue by appellants for three bales of cotton. One Ghesson, being the owner and in possession of certain lands, on the 21st day of December, 1892, executed a mortgage thereon to J.Tt. Warren & Co., to secure two notes for $1,000, each, the one payable October 5th, 1893, and the other November 5th, 1893. Upon default in the payment of either, Warren & Co. were authorized to take possession of the lands and sell the same for the payment of the mortgage debt. Default was made in payment of the first note, and on the 10th of October, 1893, Ghesson, the mortgagor, surrendered possession of the land, with the crops growing thereon, to Warren & Co. under their mortgage. Warren & Co. then appointed Chesson their agent to gather the crops for them, and under this agency he gathered the three bales of • cotton in controversy and stored them in ap-pellee’s warehouse for Warren & Co., where they remained until seized under the writ in detinue in this case. On the 14th March, 1893, Chesson executed a mortgage to the appellants, Thompson & Co., upon the crops tobe [502] grown by him upon said, lands during that year, to secure a note then given for supplies, to enable him to make a crop that year. This note was made payable October 1, 18.93,’and the mortgagees were given power to take possession and sell on default. It is upon this •mortgage title that appellants seek to recover the cotton in controversy from the bailee of Warren & Co. We think the action cannot be maintained upon well known principles of law. By the default of the mortgagor, the Warren mortgage became discharged of its condition on October 5th, 1898, and the estate of the mortgagee became absolute, subject only to an equity in the mortgagor to redeem the forfeiture, which a chancery court, to prevent hardships and injustice, would raise and enforce on application. Warren & Co. were then absolutely entitled to the land and its possession, as of their title of December 21st, 1892, created by the execution of the mortgage. This carried with it everything constituting a part of the freehold, at the time of the forfeiture ; for instance the crops then grown upon' the land. There was no possession of the lands or crops adverse to them, as in the cases of Cooper v. Watson, 73 Ala. 252, where a futile effort was made to draw in question a disputed title to land, in an action of detinue for timber cut from it; and Hooper v. Payne, 94 Ala. 223, where there was an adverse claim and possession of the cotton, at the time it was grown and severed. Here the possession of the land was in Chesson, the mortgagor, who held it in strict subordination to the Warren mortgage, and voluntarily surrendered it to the mortgagees, upon the forfeiture of the' condition, together with the cotton in controversy then growing thereon, and which was by him thereafter severed from the freehold, not as his own, but expressly for the mortgagees, under the agency which had been created. There was no controversy as to the title to the land or its possession. The principles of law which vest the superior right in the mortgagees of the land, under these facts, are elementary, and we need not cite authorities in their support. It follows that the title of appellants, Thompson & Co., to the cotton cannot prevail in this action over that of Warren & Co. Clearly a bailee, sued in detinue, may defend upon the title of his bailor; and it makes no difference that [503] the bailor aided in the defense by becoming surety on the forthcoming bond given by the bailee. The authorities cited by appellants’ counsel, on this point, have no application. Nor do we think that the fact that part of the money advanced by Thompson & Go. to Ghesson, under said note and mortgage given to them, was paid by Ghesson to said AVarren & Co. some time prevous to the 10th day of October, 1893, by check for $117, drawn by Chesson on Thompson & Co. and payable to AVarren & Go. in September, 1893, for provisions &c., which he was using for the purpose of making a crop on said lands during the year 1893, and that AVarren & Co. knew that Chesson had executed to Thompson & Co. a mortgage upon the crops for the purpose of securing the payment of the said mortgage, in any wise estopped AVar-ren & Go. to assert their superior title to the cotton. There is no question raised of notice of the execution and existence of the AVarren mortgage, on the part of Thompson & Co. The authority cited ■ by appellants’ counsel (Big. on Fraud, (Ed. of 1887), p. 187) is foreign to the subject. Affirmed.