Gilliland Mercantile Co. v. Pond Bros.

SOMEBVILLE, J. There being no material conflict in the evidence, the only real question in the case is whether, as matter of law, the mortgage given to plaintiff by Yancy Lennard and his mother, Nancy Lennard, in December, 1910, “on all crops * * * raised by us [them] during the present year [1911] and each succeeding year,” fastened a lien on a bale of cotton grown on the same land in 1912 as against both of the mortgagors. If it did, then plaintiff’s lien on the cotton was superior to any lien in favor of either of the mortgagors subsequently springing from their relation of landlord and tenant, and of course superior also to the lien of any assignee of either, having notice of the mortgage. It is not necessary that a chattel mortgage of future crops should describe the land upon which such crops are growing or to be grown.—Varnum v. State, 78 Ala. 29; Paden v. Bellenger, 87 Ala. 575, 6 South. 351; Cobb v. Daniel, 105 Ala. 335, 16 South. 882; Woods v. Rose, 135 Ala. 297, 301, 33 South. 41. It is necessary, however, for the creation of a specific lien on such crops such as will prevail against third persons who subsequently acquire a specific interest therein — that they must be the contemplated product of land in which the [546] mortgagor has a definite present interest, as distinguished from a mere possible or expectant future interest.—Paden v. Bellenger, 87 Ala. 575, 6 South. 351, citing Grant v. Steiner, 65 Ala. 499; Mayor v. Taylor, 69 Ala. 403, 44 Am. Rep. 522, and Burns v. Campbell, 71 Ala. 288; Fields v. Karter, 121 Ala. 329, 333, 25 South. 800; Karter v. Fields, 140 Ala. 352, 364, 37 South. 204; Winham v. Stephenson, 156 Ala. 341, 47 South. 280, 19 L. R. A. (N. S.) 910, 130 Am. St. Rep. 102. There is, to be sure, a line of cases in this state which hold that a mortgage of chattels, to exist or to be acquired in the future, and having no present potential existence, is enforceable in equity, as attaching to the goods as soon as they exist in the mortgagor’s ownership, whether against the mortgagor or his vendee or assignee with notice of the mortgage.—Hurst v. Bell, 72 Ala. 336; Cox v. Birmingham Dry Goods Co., 125 Ala. 324, 28 South. 456, 82 Am. St. Rep. 238. See, also, 6 Cyc. 1052, 2, and cases cited. And it would seem that the case of Hurst v. Bell, supra, cannot be reconciled with the later cases already cited above. However this may be, the doctrine that such a mortgage as the one here exhibited creates no lien, present or prospective, for the reason that the mortgagor had no present interest in the land on which it was grown, must be taken as firmly established in this state. If, therefore, plaintiff’s mortgage had been given only by Yancy Lennard, the tenant, plaintiff would not have acquired any lien on the cotton raised by him in 1912, and could not recover against the defendants for its conversion, and in any case the mortgage would have been subordinate to the landlord’s lien under which defendants claim. But it was executed also by Nancy Lennard, who was all the while the owner of the land [547] on which all the parties clearly contemplated and intended that the mortgaged crop he raised, and who was also, during the year 1912, if not previously, the landlord of Yancy, her son. So, our conclusion must finally depend upon the effect of Nancy Lennard’s joinder in the mortgage given to plaintiff. It seems clear that, so far as the interest of Yancy is concerned, Nancy’s joinder in the mortgage added nothing to its validity, and as to him the mortgage remained inoperative and void as to the crops of 1912. Did it, nevertheless, pass to the mortgagees a specific lien upon those crops, viz., the future landlord’s lien of Nancy, the then and subsequent owner of the land? This question has been settled by the decision of this court in the case of Ballard v. Mayfield, 107 Ala. 396, 18 South. 29, where it was held that a landlord may effectually mortgage his interest in crops to be raised on his land by his tenants, thereby in effect transferring his lien to the mortgagee, and investing him with such an equity as Avould enable him to maintain a statutory claim suit for any part of the crops. It may be urged, and it is in fact suggested by counsel for defendants, that in the BaMw'd Gase there Avas an actually existing landlord’s lien in favor of the mortgagor Avhen he made the mortgage. The report of the case does- not so shoAV; but, if it did, there is no reason Avhy the doctrine of potential existence, founded upon a present interest in the land, would not save from invalidity a landlord’s mortgage of unplanted crops as well as a tenant’s. The rent note assigned by Nancy Lennard to defendants Avas not commercial paper, and the previous assignment of the same rent by virtue of the mortgage given by Nancy to plaintiff Avas constructively ImoAvn to defendants by the record of the mortgage, and de [548] fendants were liable as a matter of law to- plaintiff, for tbeir conversion of the cotton and the defeat of plaintiff’s lien, to the extent of the landlord’s lien, of course, which was the value of one bale of cotton weighing 500 pounds, and presumptively of the average quality of the cotton raised on the rented land. It results from these considerations that the trial court erred in giving the affirmative charge for the defendants. The request for the affirmative charge for the plaintiff should have been restricted to the first count of the complaint, which was in case, since there could not have been a recovery under the trover court. The judgment will he reversed, and the cause remanded. Reversed and remanded. Anderson, C. J., and McClellan and Mayfield, JJ., concur.