Mecklin v. Deming

McCLELLAN, J. The actions of trover and trespass proceed upon different rights and grounds, are open to different and dissimilar defenses, and the measure of damages under each is not the same. They, therefore, can not be joined in one complaint. — Cooper v. Bissell, 16 Johns. (N. Y.) 146. It was within the discretion of the trial court to entertain a demurrer to the complaint for misjoinder of causes of action after plea filed. Besides no objection to this course was made at the time, nor at all in the court below. The facts bearing upon the question of priority as between the mortgage lien of Doming and the rent lien of Mrs. Mecklin are in substance the following: On and prior to January 24, 1893, Johnson and Burnett were in possession of >a tract of land under a deed executed to them by Mrs. Mecklin, but they had not paid the purchase money which was a charge on the land. On the day named they executed to Deming a mortgage on the crops to be grown by them on- the land during the current year to secure advances to be, and which were, made by him to them. This mortgage was recorded February 1, 1893. The cotton constituting the subject matter of this suit was a part of the crop so grown by them. On March 13, 1893, Johnson and Burnett, finding that they could not pay Mrs. Mecklin for the land, executed a deed conveying it back to her. Immediately after this transaction, Mrs. Mecklin rented the land to Johnson and Burnett for the year 1893 ; and in the fall of the year she “got from them a lot of seed cotton which she hauled to a public gm, where it was ginned and packed into” the three bales for a conversion of which by the defendants this suit is prosecuted. On these facts,it is our opinion that the lien of Deming’s mortgage on these bales of cotton, part of the crop grown on- that land in 1893, is superior to Mrs. Mecklin’s lien for rent. Johnson and Burnett were the owners of the land when the mortgage was executed. They might then have executed to Deming a mortgage on the land itself which would have been good against Mrs. Mecklin’s subsequent purchase from them. This mortgage was executed after [163] tlie first of January of the year in which the crops were to be grown. It, therefore, passed the legal tide to such crops. — Acts 1888-89, p. 45. It was recorded prior to March 13, 1893; when Mrs. Mecldin purchased the land from Johnson and Burnett, and she, therefore, had notice of it when she rented the land to them. She must be held to have purchased the land subject to or incumbered by this interest or right of Deming in respect of any crops which might be grown on it by -Johnson and Burnett that year. As between them and Mrs. Mecldin, the title to the crops was all along in them, subject to her lien for rent. The. title having passed out of them and into Deming, before Mrs. Mecldin acquired the land from them, before the relation of landlord and tenant was established between her and them, and before the inception of the rent lien, there was nothing for the lien to take effect upon except Johnson and Burnett’s equity in the crops ; their right,to the crops after satisfaction of Deming’s mortgage. Hence, our conclusion that the mortgage lien had priority to and preference over the lien for rent. And it follows that whether Mrs. Mecklin had acquired possession of the cotton in such way and for such purpose as to authorize her in ordinary cases to maintain trover on her lien and possession for a subsequent conversion of it, or not, she, having no right to the cotton as against Deming, can not recover against him or his agents in this action. It is said in the brief of appellant’s counsel that the mortgage itself shows that only Burnett executed it. This fact might be very'important here if it were shown by the abstract. To the contrary, the abstract shows that it was executed by both Johnson and Burnett, or, at least, that Deming so testified without objection. The mortgage is not set out in the abstract, but we are there referred to the transcript for it, thus : (See page 8 of record.)” The case must, however, be determined here on the abstract itself: we will not look to the transcript (except as to matters not within the rule as to abstracts) unless we are referred thereto by a counter abstract, challenging the correctness of appellant’s abstract in specified particulars, — O’Neal v. Simonton, 109 Ala, 167. The circuit court properly gave the affirmative charge for the defendants, and its judgment is affirmed*