MANNING, J. —
Appellants, as plaintiffs, in the autumn of 1873, sued out a writ of attachment against Henry 0. Spears, defendant, under sections 1858, 1859, and 1860, of the lie-vised Code, to enforce a crop lien claimed by them, upon cotton and corn raised by him that year in Dallas county; the affidavit on their behalf alleging, that the amount for which they sued was advanced under those sections of the Code to enable Spears to make his crops of that year, and that he had removed a portion of these from the premises, without their consent, and without having paid such advances. Under this writ, the sheriff seized cotton in bales, cotton gathered but unginned, and corn, of the crops raised by SLpears that year; to which property the appellees made claim; and the statutory contest — a trial of the right of property — was thereupon afterwards instituted. The issue was formed, according to law, by an allegation on behalf of plaintiffs that the property levied on belonged to defendant Spears, and was subject to the levy of the attachment, and by a denial on the parts of claimants that it was subject to the attachment.
On the trial of such an issue, the claimant is not, ordinarily, permitted to controvert the indebtedness of defendant to the plaintiff. The inquiry is not presented, whether the relation of debtor and creditor exists between them. — Pulliam v. Newberry’s Ex’r, 41 Ala. 168" court="Ala." date_filed="1867-06-15" href="https://app.midpage.ai/document/pulliam-wills-rankin--co-v-newberrys-administrator-6507357?utm_source=webapp" opinion_id="6507357">41 Ala. 168, and cases there cited. The issue relates to the rights of the parties in the property attached; and a 'prima fade case being made for plaintiff, it requires, and of course permits the claimants, to show that they have such a title to or interest in the property, as prevents it from being subject to be sold to pay the defendant’s debt to plaintiffs. Without showing this, they cannot have any legal right to raise questions that pertain to a controversy between other persons. And, on the other hand, the issue joined does not allow the introduction, on behalf of plaintiffs, of evidence that the title was, by mortgage or otherwise, in .them. Such a title cannot be set up or vindicated by a proceeding which implies, and under an issue in which they affirm, that the title is in defendant Spears; by reason whereof, they attach the property to pay a debt he owes.
*566Tbe attachment of a debtor’s property subjects it, by operation of law, to a lien upon it in favor of the attaching creditor, from the time the writ is executed by a levy; and generally, this is the date at which the lien has its origin in an attachment cause. But section 1860 of the Revised Code gives to a creditor, having a crop lien, the right “ to enforce such lien,” under certain circumstances, by a writ of attachment ; and it is under this section that the plaintiffs brought their suit against defendant Spears. The object was to enforce such a lien. Hence, if in the trial of the issue formed between plaintiff’s and the claimants of the property attached, the latter show a title in themselves, antecedent to the levy of the writ of attachment, and therefore older than the lien created by the levy, the plaintiffs may show that, by a transaction in pais between them and the defendant, they acquired a crop lien on the same property before title was acquired by the claimants, which crop lien they are proceeding according to law to enforce. Consequently, if the instrument made by Spears and wife, in February, 1872, purporting to declare a crop lien on the crops of 1872 and 1873, as well as to be a mortgage in favor of Boswell, who assigned it to plaintiffs, be valid and operative to create a crop lien simply, it was properly introduced to prove such lien, and to maintain the validity of the attachment, in opposition to the right of claimants to the same property under the subsequent instrument of March, 1873, executed by Spears to them. But, if the former instrument to plaintiffs did not create the statutory crop lien in their favor, on the crop of 1873, but was effectual as a mortgage only, although as such it conveyed the title to that crop to them, it could not, on the trial in this cause, be introduced to sustain their title as mortgagees; because, as we have said, that is not only not within the issue joined, but is contrary to the averment in their own pleading.
2. Besides, in such a case, the legal title being in the mortgagees, only the equity of redemption would remain to Spears; and of this, it is not permitted that he shall be foreclosed through an action brought by the mortgagee, in a court of law, upon the mortgage debt, and a sale of the equity of redemption to satisfy the judgment in such action. In respect to real estate, at least, such a sale of the equity of redemption would convey no -title to the purchaser.- — Powell v. Williams, 14 Ala. 496" court="Ala." date_filed="1848-06-15" href="https://app.midpage.ai/document/mcmichael-v-branch-bank-at-montgomery-6503750?utm_source=webapp" opinion_id="6503750">14 Ala. 496. But a mortgagee of personal property, who should himself cause it to be sold, to satisfy a judgment at law in his favor for the mortgage debt, might be held, perhaps, as thereby relinquishing his title as mortgagee, and causing the entire property to be sold without the incum-brance. — See Barker v. Bell, 37 Ala. 358-360. And a like *567sale under a writ of attachment, in a suit at law, of the mortgagee, would, we apprehend, not differ in its effect from a sale under execution in such a case.
3. But the question conies up, did plaintiffs have a crop lien on Spears’ crops of 1873 ? If they had, it was created by his and his wife’s deed of February, 1872, to Boswell. Care was taken to have every thing which the statute prescribes, as necessary in an instrument establishing such an interest, amply expressed in that deed. There is no defect of form. But form and formalities are not sufficient to create a crop lien. Such a charge, when it exists, supersedes any other lien, whether created by mortgage or otherwise, on the crops upon which it is fastened, except the landlord’s lien for the rent of the land on which they were grown; and a lien to which is conceded this precedence of and priority over other and older liens, must not only be authenticated as the law prescribes, but must be founded on a real, true, and honest transaction of the kind described in the statute. Indeed, the better to insure this, the law puts the parties, as it were, upon their honor. The “ advances in horses, mules, oxen, or necessary provisions, farming tools and implements, or money to purchase the same,” are to be made to the person obtaining them, “to enable him to make a crop;” and for any such advance he must declare, “in a written note or obligation, * * that the same was obtained by him bona fide for the purpose of making a crop, and that without such advance it would not be in [his] power * . * to procure the necessary team, provisions, and farming implements to make a crop.” And this declaration is to be spread upon the public records. All the provisions of the act show, that the parties to the transaction are expected to be scrupulously upright and sincere. If they are not so — if it be shown that no such advances were really made for the purpose of enabling a crop to be raised, and that the declarations to that effect were falsely made, or procured to be made, as a device for creating a security that should- override older securities of other creditors, the law denounces the securities so obtained as fraudulent and void in respect to such creditors. The Circuit Court, therefore, did not err in refusing to exclude testimony tending to show that the instrument relied on by plaintiffs was made to secure the payment of a pre-existing-debt of Mr. Spears, and not for advances to make a crop, as alleged; which allegations he did not know to be contained in the instrument. The claimants, not being parties to this instrument, are not bound by the recitals in it.
4. But, though this evidence was not illegal, it was not in the present casé necessary, The deed in question was made *568in February, 1872; and tliougb it purports to create a crop lien on the crops of that year, and also on crops of the next year, 1873, it could not so operate in respect to the crops of the latter year. It is too obvious to admit of argument, that the advances provided for by the statute were such as should be used in making the next ensuing crops. The circuit judge did not err in so instructing the jury. His charge t'o them, in respect to what is requisite to constitute a valid crop lien, is a correct and very lucid statement of the law; except so far as it seems to make the crop lien depend upon the actual application of the advances to the making of the crop. Thé creditor is not responsible for a misapplication of them, made without his knowledge or assent. It is quite clear from the instrument itself, on which plaintiffs based their claim of a crop lien, that they have no such lien on the crop of 1873.
5. The claimants derive their right to the crops attached, from the instrument defendant Spears executed to them in March, 1873. It declares a crop lien thereon, to secure advances made to enable him to raise a crop that year; and the uncontradicted oral testimony is in harmony with its recitals. But a crop lien only is not sufficient. In a “ trial of the right of property,” the claimants must have something-more than a mere lien. They must have a title — at least, the right to the possession of the thing in controversy, and not the mere right to have it sold by the officers of the law to pay a debt due to them. But the instrument of March, 1873, vests title to the crops to be grown by Mr. Spears in that year, in them. Although it contains apt words to constitute a crop lien, like the similar instrument considered in Gafford v. Stearns (51 Ala. 434" court="Ala." date_filed="1874-06-15" href="https://app.midpage.ai/document/gafford-v-stearns-6508869?utm_source=webapp" opinion_id="6508869">51 Ala. 434), it is a mortgage also ; and as such, it conveys a title to the claimants, which would have enabled them to maintain detinue, and is consequently sufficient to give them a standing in a case of the trial of the right of property. As this instrument was the regular and proper evidence of the title to claimants, the Circuit Court did not err in allowing it to be read as such to the jury.
6. In his testimony, received without objection, concerning the transaction in which this instrument was given, Mr. Spears explained that, being indebted to the claimants, in January, 1872, he had in that month executed to them a mortgage for their security, which they did not foreclose, but permitted to stand over. The same thing is mentioned in the instrument to them of March, 1873; and the mortgage referred to was introduced in evidence at the trial, against a general objection of plaintiffs thereto. Such evidence may pot have been necessary. Brit, as it could not be known *569whether plaintiffs would not, in conclusion, seek to discredit the account of the transaction given by the witness, the mortgage was admissible in support of his testimony, concerning the matters to which it had relation. It could not in any way produce injury to plaintiffs.
7. Among the charges given by the court, is one based upon evidence that Boswell had agreed to waive his lien in favor of claimants, if they would advance io Spears, their common debtor, the means of making a crop, and that they did so. The circuit judge instructed the jury, that this agreement, not being reduced to writing, according to the statute of frauds, was void, as an undertaking in effect to pay, to the extent of the property on which the lien was waived, the debt of another. It is very questionable whether this charge was correct; but, as it was given in favor of appellants, if there was error in it, it was error of which they can not complain.
8. It remains to consider the objections to the first charge given by the circuit judge, at the instance of claimants in the court below. As we have before explained, the plaintiffs could not extend backward the lien in their favor, created by the attachment of the property in controversy, except by connecting it with an antecedent crop lien, which the attachment was designed to enforce: and the only instrument on which they relied to do this, was the deed to Boswell, made in February, 1872, which, as we have seen, did not create such a lien on the crop of 1873. And on the other hand, a simple crop lien on that crop, in favor of claimants, would not -be sufficient to enable them to maintain their side of the issue in the action of “trial of the right of property.” They must show in themselves a title, or right of possession; for which they relied on the instrument, that was in fact a mortgage, of March, 1873. The question of a crop lien was thus, in fact, wholly excluded from the case made by the evidence. Yet, almost all of the -instructions of the Circuit Court, given voluntarily or on request, seem founded on the idea that this was the real question in the cause, on both sides; and some excellent charges were given to the jury in that aspect of the case. But, as plaintiffs had no crop lien whatever, and the claimants were not required to prove one in their favor, but might rely on their mortgage only, the instructions of the court tended to confuse the jury in respect to the rights of the claimants, by seeming to require of them the duty of proving more than, as mortgagees, they were bound to prove. They were not, for instance, required as such to prove that the advances they made, for which the instrument of March, 1873, was executed, were made to enable Spears to raise a *570crop; or that they were used for that purpose. It was sufficient to show that the advances were in fact made in good faith, and that Spears became indebted to them therefor. The charges, including the first one given at the instance of the defendants, required this, and more; and if there was any error in them, it was error to the prejudice of the claimants, of which the plaintiffs, who are the appellants in this court, can not complain.
Let the judgment of the Circuit Court be affirmed.