Bennett v. McKee

TYSON, J. The fact that the cotton, when levied on, was in a house on the premises of the defendant in exe: [604] cution is prima facie evidence of possession of it by defendant, and, therefore, of ownership, and cast upon the claimant the burden of showing title to the property in her intestate. Nor can plaintiff be defeated by claimant showing title in a third person unless she knows that her intestate acquired that third person’s right to the property.' — 2 Brick. Dig. p. 480, § 67; 4 Mayfield’s Dig. p. 977, § 56. If the claim is based on a mortgage or lien, the affidavit must state the nature of the right, and if the affidavit is faulty in this respect, the claimant must be cast in the suit. — § 4145, Code 1896; Ivey v. Coston, 134 Ala. 259. We do not, however, understand from the record that the claim here asserted is based upon a mortgage or lien, but upon the legal title acquired to the property by claimants’ intestate, Bennett, from one Agee of whom he purchased it prior to the levy of the execution. The cotton was raised by a tenant of defendant in execution and placed by him in a house on the premises of defendant for Agee, subject to the payment of his rent. It was thus situated at the time that Agee, claiming to be the owner of it by virtue of an assignment to him of the rent, sold it to Bennett. If Agee was the owner of the rental contract by assignment and the; cotton was in his possession at the time he sold it to Bennett, then Bennett acquired the legal title to it and the claimant is entitled to recover. And whether Agee was in possession of it under the evidence; was a. question for the jury. Agee’s claim to the cotton is based upon a clause in a mortgage executed to him by the defendant long before the levy of the execution and for that matter, before its issuance. The mortgage contains this language; “I hereby grant, bargain, sell and convey, to the said I. A. Agee * * * all rents that may be due me during the current year, 1900."’ By section 2706 of the Code the claim of a landlord for rent may be assigned and the assignee is invested with all the landlord’s rights. The assignment may be by parol or by mere delivery of the rent note or by appropriate words in a mortgage. See cases cited under section 2706. [605] That the words employed in the mortgage were sufficient to assign the rent and did SO' operate, we entertain no doubt. When the assignment of the rent was effectuated, Agee was the landlord and he alone had a lien upon the cotton, and when he took possession of it, if the jury should find that he did, he became the absolute owner of it and could, of course, convey the legal title to it to Bennett. It is of no consequence that the mortgage was never recorded. An assignment by a landlord of his claim for rent is not required to be recorded. For the purpose of showing Agee’s right and title to the cotton, the claimant should have been allowed to introduce the mortgage in evidence. Its exclusion was error for which the judgment must he reversed. ' Beversed and remanded. Haralson, Dowdell and Denson, JJ., concurring.