Ellis v. Martin

60 Ala. 394 | Ala. | 1877

BRICKELL, C. J.

The description of the thing conveyed in the mortgage is very general and indefinite; but it is capable of being rendered certain, by evidence showing the lands cultivated by the mortgagor in 1875, and the quantity of corn and cotton raised thereon. Generality and indefiniteness of description will not avoid a conveyance. It is uncertainty that will not be removed when the conveyance is read in the light of the circumstances surrounding the parties at the time it was entered into, and their manifest design is considered. Nor can it be admitted that the necessary effect of the generality of the description is to mislead and deceive strangers dealing with the mortgagor. If purchasing from him corn or cotton, inquiry is excited, and they are bound to ascertain, and must at their peril ascertain, whether it was raised by tbe mortgagor in 1875, or whether it was in some other manner acquired.

The lien of the landlord for the payment of rent, is an inident of tlie tenancy, attached by law. It is not created by, or dependent on, the issue and levy of an attachment on the crops. This is but the mode of enforcing the lien at law. The attachment should direct a levy on the crops only, and should not be an authority to the officer executing it, to levy on the estate generally of the tenant.—Hawkins v. Gill, 6 Ala. 620. If issued against the estate generally, it would be abated on plea, and a levy on other property than the crops grown on the rented premises would be set aside. But it is not void — it is merely irregular; and until abated, if levied on the crops, is capable of enforcing the lien for rent. A claimant, in a trial of the right of property, can not take advantage of irregularities in the process levied, which do not render it void.

The instructions of the Circuit Court were inconsistent with these views; and its judgment is reversed, and the cause remanded.