Maybank v. Lumpkin

ANDERSON, C. J. The plaintiff in this case, Avhile the husband of the landlady and owner of the land, did not seek a recovery under a landlord’s lien, but as the assignee of mortgages executed by W. R. Patty to Ingram & Co., and which had been duly recorded. These mortgages conveyed all right, title, or interest in the crop that the said W. R. Patty had in same, Avhether he greAV the same as tenant or as proprietor, and the plaintiff was entitled to recover so much of the value of same as Avas sufficient to satisfy any unpaid balance due upon his mortgages. It matters not whether the lease was Avithin or Avithout the statute of frauds, or Avhether or not the plaintiff had the right to testify to transactions with W. R. Patty, since deceased, as the one fact stands undisputed, and is established by the defendant’s testimony, that W. R. Patty was the owner of the crop and in control of the land in 1913, the year the cotton in controversy was grown; and the sole question to be determined is Avhether or not the mortgages covered all of the crop or were subordinate to the interest therein claimed by Andrew Patty, the son of W. R. Patty, under an alleged agreement between them before the crop was planted, wherein the elder Patty [563] furnished the land and team, and Andrew Patty the labor. If this claim was true, W. R. Patty owned the crop, but it was subject to the lien of Andrew Patty under section 4743 of the Code of 1907, and which was superior to the mortgage lien as to his part of the crop. On the other hand, if this agreement was not made, the entire crop was subject to the plaintiff’s mortgage, and this issue was fairly and clearly submitted to the jury, who found that no such agreement existed. It-, may also be true, that Andrew Patty and his mother testified to the existence of the contract, but there were sufficient facts and circumstances to create a contrary inference and to make it a question for the jury; hence there was no error in refusing the general charge requested by the defendant. There was no reversible error in sustaining the plaintiff’s demurrer to defendant’s special plea 3; for, whetha good plea or not, the defendant got the full benefit of same under the general issue, both as to proof, and in the charge of the court. The age of Andrew Patty was a legitimate question of inquiry, in determining whether or not there was such an agreement as he attempted to show between himself and his father. While not conclusive on him, nor prohibitive of the contract, if he was a minor, yet the fact that he was a minor and living with his father was a circumstance for the jury, in determining whether he was cultivating the crop for his father as a son and member of the family, or under an independent contract such as he claims was in existence. The judgment of the city court is affirmed. Affirmed. Mayfield, Somerville, and Gardner, JJ., concur. .