Bell & Co. v. Hurst, 75 Ala. 44

75 Ala. 44 | Ala. | 1883

BRICKELL, C. J.

The statute declares a lien, in favor of a landlord on crops grown on rented land for the rent of the current year, “ and for advances made in money or other thing of value, whether made directly by him, or at his instance and request by any other person, or for which he has assumed the legal responsibility at or before the time at which such advances were made.” — Code of 1876, § 3467. The lien is declared in favor of the landlord, and operates for his security and protection. By extending the lien so as to cover advances made by others at his instance and request, it was not intended to confer upon him the power to appoint another to make advances to his tenant, thereby clothing such person with the lien declared by thé statute. Where the advances are not made to the tenant “directly ” by the landlord, but by others “ at his instance and request,” the clear purpose of the statute is to afford him indemnity against the liability he thereby assumes for the tenant. If, therefore, the advances are made by a third party with the understanding, either express or implied, that he is to look to the tenant, and not to the landlord, for payment, although made at the instance of the landlord, and on his request, no liability resting on the landlord, there is no room for the operation of the statute, and the lien does not exist. The immediate circumstances surrounding the execution by Haralson and James, the landlords, of the paper-writing offered in evidence by the appellants, are not stated in the record. But it is clear, from the language of the instrument, especially when construed in the light of the preceding and subsequent conduct of the appellants, that it was not in the contemplation of the parties, that the landlords should become liable to the appellants for any advances which the latter might make to the tenant Cook. It is true there is a request that the appellants should advance to Ooolc, but this request is accompanied by language which rebuts the implication of liability which might otherwise spring-from it. Though inaptly worded, it is manifest that both parties intended that the appellants were to look for payment to the tenant and to his crop, and to the crop only after the rent was paid. Such was evidently the construction placed on the instrument by the appellants at the time. Two days before, the tenant had executed to them a note, intended as a crop-lien note under the statute, and a mortgage, to secure advances which they agreed to make during the year. An account was opened with the tenant, and the advances, as they weie made, were charged against him, and not against the landlords. The only legal effect the instrument can have is that of an agreement on the part of the landlords, that they would not advance to the tenant during the year, thereby imperiling the lien created by the note and mortgage executed to the appellants by the tenant. There was no error in the ruling of the circuit coirrt excluding the writing from the jury.

The only remaining question arises from the refusal of the court to give the charge requested by the appellants. This charge is based on the theory that the .appellants had a lien for advances made by them to Cook under section 3286 of the Code, and that this lien was superior to the prior mortgage executed by Cook to the appellees. The bill of exceptions does not purport to set out all the evidence introduced on the trial. It contains the note and mortgage executed by Cook to the-appellants, and recites that the appellants introduced evidence tending to show that they supplied and furnished Cook, during the year 1881, with “ teams, provisions and farming implements, or money to purchase the same, and for other purposes, to the value of one thousand dollars, as shown by account hereto attached.” The first item of the account is a large balance carried over from the year 1880. Numerous items of cash paid to various parties at different times are also embraced in the account, without any explanation given of the purposes for which the money was paid or used. There are other items in the account which can not be affirmed, unaided by explanatory evidence, to come within the category of articles designated by the statute. The account also aggregates over two thousand dollars, while the note is only for one thousand dollars.- What items contained in the account, formed the consideration of the note, constituted the advances , intended by the parties to be secured thereby, the record fails to show. The note could not, in any event, as between the parties to this suit, operate as a security for a greater amount than that expressed in it.—Collier & Son v. Faulk & Martin, 69 Ala. 58. To defeat the action of the appellees, who claim under a prior mortgage, and to maintain the correctness of the charge requested, the appellants must show that they had a valid lien under the statute for advances made to Cook, and that the proceeds of the crop received by them were not more than sufficient to satisfy and discharge that lien. This involves the necessity of showing, not only that the terms of the note executed by Cook, the tenant, were in substantial compliance with the requirements of the statute, but that the articles advanced came within the class of articles mentioned in the statute.—Boswell & Wooley v. Carlisle, Jones & Co., 55 Ala. 554; Evans v. English, 61 Ala. 416; Carter v. Wilson, Ib., 434 ; Schuessler v. Gains, 68 Ala. 556. This requires that all the articles advanced, and for which the note is intended by the parties as a security, should be of the statutory class. As we said in Evans v. English, supra, “ Commingling other debts, founded on other considerations, and a security for all, is not intended. Such security may be taken by mortgage or other appropriate instrument. But whatever may be the terms of the instrument, it is not the security the statute authorizes, and is not entitled to the statutory priority.” This principle was again announced in Comer v. Daniel, 69 Ala. 434, and it may now be considered as the settled rule for construing' this class of contracts. Conceding, then, that the terms of the note are in substantial compliance with the statutory requirements, it is manifest, both from the recitals in the bill of exceptions, and from the account which is exhibited thereto, that the note is founded, in part, on other considerations than the advances contemplated by the statute; and, also in part, on considerations which are not shown to be within the class of articles intended to be secured as advances. This case is clearly within the rule announced in Evans v. English and Comer v. Daniel, supra. There was no error in refusing the charge requested.

Affirmed.