55 Ala. 266 | Ala. | 1876
The operation and effect of mortgages of personal property not in existence, or not owned by the mortgagor at the execution of the mortgage, the future acquisition of which was contemplated by the parties, is the subject of much discussion, and of great diversity of judicial decision. It is uni
The mortgage was not of a growing crop ; the mortgagors-had not entered on the leased premises, and had not a right to enter for more than two months after the execution of the mortgage; and the cotton would not be planted for more than two months after the right of entry accrued. The mortgage was, therefore, intended to operate on cotton not planted, but which it was contemplated the mortgagors would, in proper season, after entry on the leased premises, plant and cultivate to maturity, and which during the term they should annually plant anct cultivate. If no other relation existed between the parties than that of mortgagor and mortgagee, we incline to the opinion, that if, at law, the mortgage would be invalid as a conveyance of things not in existence, unless ratified by some act done by the mortgagor after their acquisition, in equity it would attach to the crop, as it came into existence, transferring the beneficial interest-against the mortgagor and all others than a bona fide purchaser without notice. — 1 Chit. Cont. 528-30; Benjamin on Sales, § § 78, 84; Butt v Ellet, 19 Wall. 544; Sillers v. Lester, 48 Miss. 513; Stewart & Irvine v. Fry, 3 Ala. 573; Kirksey v. Means, 42 Ala. 426; Abraham v. Carter, June term, 1875, in manuscript.
As between the mortgagor and mortgagee, standing in the relation of lessor and lessee, we concur in the former decision, that the operation and effect of the lease and mort
We cannot perceive any substantial reason for declaring that the parties may not, by the stipulations of the lease, enlarge, or diminish, or entirely abrogate the statutory lien. It may not be deemed a sufficient security to the lessor for the payment of the rent; why may it not be enlarged by a reservation to him of the title to the crop as it comes into existence ? It is the lease which deprives him of the title to-the crops, which would follow as an incident to the fee ; and we think, it competent for him, in the creation of a term for years, to define the quantum of the interest the lessee may take a d hold, and the quantum of interest he will reserve. Leases, creating only mere terms for years, may be dependent on conditions, or reservations may be made, which could not be supported in conveyances of the fee. A condition, annexed to a grant of the fee simple, forbidding all alienation, would be void, because repugnant to the character and quantity of the fee. An incident to a lease for years is the right of the lessee to assign the lease, or to underlet the premises. A covenant against assignment, or against underletting, with a condition that its breach works a forfeiture of the lease, and that the lessor may re-enter, is valid. If the condition is broken, and the lessor re-enters, he is in as of his former estate; and a crop growing on the premises passes to him — Davis v. Eyton, 7 Bing. 154. But, if the lease contains a stipulation that, notwithstanding the
Bent may be reserved, payable in kind, in tbe products of tbe soil; and if so reserved, whether title remains in the lessor, or passes to tbe lessee, is determinable by tbe words of tbe stipulation in the lease, and not on tbe inquiry whether tbe products exist actually or potentially, so as to be tbe subject of grant or sale. The lease may be so expressed, that tbe title to tbe crops will follow tbe term, until there is severance and delivery to tbe lessor, as in Rhinhart v. Olive, 5 Watts & Serg. 157, and other cases. Or, it may be reserved to tbe lessor, as in Kelly v. Weston, 20 Maine, 232, in wbicb the tenant agreed to cultivate and bag tbe bop crop of tbe year for tbe lessor, in payment of tbe rent. Lands in this State are frequently let upon shares — upon contracts by wbicb tbe tenant is to cultivate them, and share tbe crop with tbe landlord. Tbe rights of tbe parties depend entirely on tbe particular terms of tbe contract, and their intention as it may be collected from these terms. No rule of law is offended, if tbe relation of landlord and tenant is not created; if it is a mere contract for tbe payment of wages, in a share of tbe crops; or if it is a mere tenancy in common of tbe crops, without transferring any interest in tbe soil, or transferring merely tbe bare right of occupancy. — 1 Wash. Real Prop. 496-501. It is for tbe parties to define tbe relations wbicb they may assume, and tbe rights and interests wbicb are created. The lessor may except, or reserve from tbe lease, tbat wbicb be does not choose to grant; and may retain a title to any part of tbe products the tenant consents be should retain.
In Moulton v. Robinson, 7 Foster (N. H.), 550, it is bpld, where lands are leased, reserving a part of tbe crops in lieu of rent, tbe contract takes effect by way of reservation, and
Nor can tbe shipment and sale of tbe cotton be deemed a conversion. There was no wrongful taking, or wrongful detention — no illegal assumption of ownership, or illegal user, or misuser. The shipment and sales were authorized by the stipulation. A conversion is always tortious, and from it no rights can be acquired.- — Sargent v. Blunt, 16 Johns. 74; Bromley v. Coxwell, 2 Bos. & Pul. 438; Jones v. Font, 9 B. & C. 764. If the shipment and sale were tortious, the purchasers from the factors acquired no title, which they could maintain against the appellee, and would be equally liable with the factors and the lessees to an action of trover, — a proposition which would scarcely be asserted.
4. The stipulation requires the factors, to whom the cotton is shipped, from the proceeds of sale to pay the lessor the rent of the current year. The factor having made the sale, and having notice of the lessor’s rights, before paying over the proceeds to his principal, becomes liable to pay the lessor so much of the proceeds as may be necesssary to satisfy the rent. An agent, receiving money to which his principal is not entitled, which, ex cequo et bono, belongs to another, on demand made, or notice being given him of the right of the true owner, becomes liable to him, and cannot relieve himself from the liability by a subsequent payment to his principal. — Story on Agency, §§ 300, 801; Houston v. Frazier, 8 Ala. 81; Gayle v. Benson, 3 Ala. 234. The proceeds of sale, or so much thereof as would pay the rent, could be recovered by the lessor of the factor, in an action for money had and received. Such action lies, whenever the defendant has money which, ex cequo et bono, belongs to the plaintiff, and which the defendant has not a legal or equitable right to retain. No privity of contract is essential to support it, except that which the law implies. — 1 Brick. Dig. 140, §§ 72, 73.
The factor may have made advances to the lessees, or to his principal, if another than the lessee, entitling him, as against the principal, to a lien on the cotton, or the proceeds
Tbe factor, under the stipulation we are considering, would bave tbe right to retain tbe ordinary commissions for making sales, and such charges as be may have paid for tbe transportation, and in tbe sales of tbe cotton. Tbe right of tbe .lessor is to the net proceeds — or tbe payment of tbe rent
From the view we have taken of the rights of the appellee, and of the liabilities of the factors, and of the lessees, it is apparent the present action is- misconceived. The only grievance of which the appellee can complain is, that the factors have not, from the proceeds of the sales of the cotton, paid her the money to which she is entitled; or that the lessees have not paid the rent, as by the covenant in the lease, and the promissory notes made by them, they were bound to pay. The refusal and failure of the factors, or of the lessees, is a breach of promise, not a tort, for which the appellee can have adequate redress in forms of action ecc contractu, but not in an action ex delicto. The distinctions between these forms of action are not obliterated, but preserved by our statutes. It is important that they be observed; “else we shall fall into a distressing state of uncertainty and confusion.” In Masters v. Stratton, 7 Hill, 104, it is said by Nelson, C. J., “but where the action is not maintainable without referring to a contract between the parties, and laying a previous ground for it by showing such contract, then the plaintiff must proceed upon the contract, and a special action on the case will not he.” Applying the rule to this case, it seems clear that the only remedy of the appellee is ex contractu. The liabilities of all the parties rest in contract, and are essentially different, not common in obligation, and incapable of joinder in a suit against all of them. The liability of the factor is in an action of assumpsit, for money had and received. It springs out of the contract between the lessor and the lessees. — without that contract, it would have no existence, and without reference to that contract cannot be shown. No such liability rests on the lessees — they have not received money to which the appellees are entitled. Their liability is for the rent, and rests on the covenant in the lease, and the promissory note.
If one person receives money, to be paid to another, the
The judgment must be reversed, and the cause remanded.