Dyer v. State
88 Ala. 225
Ala.
1889
Check Treatment
SOMERVILLE, J.

1. The mortgage introduced in evidence purports on its face to have been given “in consideration of advances made for the year 1884, and to secure the same,” reciting the amount to be the sum of one hundred dollars. Whether these advances had already been made, or were agreed to be made by the mortgagee, the consideration recited was prima facie sufficient, as between the immediate parties to the instrument.' — 1 Jones Mortg. (3d Ed.), § 64; Collier v. Faulk, 69 Ala. 58; Huckaba v. Abbott, 87 Ala. 409; Laws on v. Alabama Warehouse Co., 80 Ala. 341. There being no evidence in rebuttal of this recital, the objection that the mortgage was void, for want of a legal consideration, was properly overruled.

2. The mortgage purports to be given on two cows, besides the crop of cotton and corn raised by the defendant, as mortgagor, during the year 1884, on his plantation in Cherokee county. The' indictment charges that the mortgage lien covered two cows, and two calves. This was no variance, as the mortgage on the cows might cover calves which were the offspring or increase of the female parents after the execution of the conveyance. It is a settled rule, that the offspring of mortgaged animals, which are born after the making of the mortgage, are subject to the lien of such incumbrance, under the maxim, partus sequitur ventrem. — Meyer v. Cook, 85 Ala. 417; Gano v. Williams, 62 Ala. 41; Jones on Chat. Mortg. §§ 149-150. The inference is, that the witness, in speaking of “the cattle,” had reference to those described in the indictment, including both cows and calves.

3. The recalling of the witness Farmer, to prove the value of the mortgaged animals, which was permitted to the State after the giving of the oral charge by the court, was within the discretion of the presiding judge, and furnishes no ground of reversible error. — Phœnix Ins. Co. v. Moog, 78 Ala. 286; Drum v. Harrison, 83 Ala. 384.

4. The court erred, however, in excluding the evidence *230as to the instructions given the witness Parmer by Mrs. Dyer, the wife of the defendant, as to hauling and shipping the mortgaged cotton. The evidence tended to show that she was acting as the agent both of the mortgagor, Dyer, and the mortgagee, in having the cotton shipped to Rome via. Owen’s Landing. Dyer, before leaving home, had authorized the witness Parmer to haul the cotton, and the latter was to get instructions from Mrs. Dyer. Under these circumstances, the instructions and acts of Mrs. Dyer, within the scope of her agency, ought to have been allowed to go to the jury.

5. There is no evidence from which it can be inferred that the mortgagee was to take the risk of the cotton while at Owen’s gin, so as to cast on him the loss there sustained through its destruction by fire. His letter of instruction to Mrs. Dyer was, to have a bale of cotton shipped' to Rome, Georgia; and his verbal instruction to Dyer himself was, to “haul the cotton to Owen’s Landing, and ship it to Rome,” The delivery at the gin, therefore, was not a delivery to the mortgagee at his subsequent risk. The charges based on this theory of the case were properly refused.

We have examined the exceptions taken to the other rulings of the court, and think they were properly overruled.

The judgment is reversed, and the cause remanded for a new trial. In the meanwhile, the defendant will be retained in legal custody, until discharged by due course of law.