Foxworth v. Brown Bros.

120 Ala. 59 | Ala. | 1897

HARALSON, J.

This is an action by the appellant, F. G. Foxworth, against the defendants, Brown Brothers, for money had and received by them for the use of the plaintiff.

1. The cause of action, as developed on the trial, orignated in this wise : The plaintiff rented to one Shamberger for the year 1892, his plantation in Wilcox county, Ala., known and called the McNeil place, for the sum of $500. Shamberger procured advances from the defendants in that year, and gave them a mortgage on his crops to be grown the same year, to secure the advances. He shipped the cotton he raised to defendants, without having paid his rent to plaintiff, and they sold the same and appropriated the proceeds to their own use, in the payment of Shamberger’s mortgage indebtedness to them, with knowledge of the fact, as plaintiff insists, or with sufficient notice of facts to put them on inquiry to ascertain the fact, that plaintiff owned the plantation on which the cotton was raised and had a lien on it for the payment of his rents. Shamberger testified, that defendants advanced him that year about $1,000, and that the proceeds of the cotton shipped during the year to defendants was placed to the credit of that sum so advanced to him by them ; and that he also gave drafts on them for other accounts due up the country; that when defendants sold said cotton, they made account sales of it to him, and placed the amount due him to the credit of the money previously advanced to him; that in the year 1892 he shipped to defendants between 30 and 40 bales of cotton grown on the plaintiff’s McNeil place, which was all sold by them before the first of January, 1893, and that the net proceeds of the cotton was over $25 a bale. ' He further testified that the plaintiff did not give his consent for him to ship the cotton befoi’e paying the-rent.

'2. In order to show notice to defendants of the plaintiff’s lien for rent',' he sought to introduce evidence tending to show that said Shamberger had rented said McNeil place from plaintiff in 1891; that defendants had made advances to him for that year, to secure which Shamberger gave them a mortgage on the crops grown on said place ; -that he had done the same thing for the year 1892, and that defendants knew that said cotton was raised on'plaintiff’s said plantation. The witness testified without objection, that for each of the years, 1891 and 1892, he gave defendants a mortgage for ad-' vanees made to him by them, in each of said years. He was asked as to each of said years, if he gave to defendants a mortgage on the crops grown on the McNeil place. These questions'were each objected to by defe'ndahts, on the ground, that they called for secondary evidence, and no proper predicate had been' laid for its introduction ; that-the contents of the mortgage could not be given by the witness. The evidence proposed was not subject to the objections interposed. The gravamen of the suit was, that the defendants had received cotton grown upon the rented land of the plaintiff, and sold and received the money for it, and appropriated it to their own use, with notice of the plaintiff’s lien on it for rent. When the case was here on a former appeal (114 Ala. 299), we held in repetition of what had been frequently held before, that actual knowledge is not necessary to charge a purchaser of cotton from the tenant with notice of the landlord’s lien on the same that whatever is sufficient to put him on inquiry, is also sufficient to charge him with notice (60 Ala. 537; 76 Ala. 311; 83 Ala. 208) ; and that if the purchaser have knowledge of facts sufficient to excite- such inquiry, or a knowledge of facts, which would naturally and reasonably be calculated to arouse suspicion of the main fact, notice of which is sought to be charged to him, the duty of inquiry exists and he must exercise it.—Kyle v. Ward, 81 Ala. 120. The mortgage inquired about, could not have defined and determined the relative rights of the parties'to this suit. It was by a third party to the defendants, and not by plaintiff to them, and was not a main issue in the cause, The purpose of its introduction was- to show" that the defendants had notice that the cotton was raised on plaintiff’s McNeil farm, or gave them notice of a fact which, if followed up, would have given them knowledge of facts calculated to put them on inquiry. There was other evidence tending to show, that defendants knew or had notice that the cotton was raised on plaintiff’s farm, and 'the evidence sought by these questions, also tended to show the same thing. But, the evidence sought was merely collateral and incidental to the main issue, and does not fall within the rule requiring the highest and best evidence.—East v. Pace, 57 Ala. 521; Street v. Nelson, 67 Ala. 504; Winslow v. The State, 76 Ala. 42;

■ 3. The plaintiff introduced evidence tending to show, that in 1891, said Shamberger having rented said farm from plaintiff, and having received advances from defendants that year, Shipped them the cotton raised on the plaintiff ’s plantation and others he was cultivating in Wilcox county, and that in order to pay plaintiff’s rent for that year he gave him a draft on defendants for seven hundred and fifty dollars, which draft specified on its face that the sum drawn for, was “as rent for the McNeil place,” which draft the defendants paid. It was payable on the 15th of December after date, and was drawn between the 1st of December, 1891, and the latter date. This evidence was admissible as tending to show-knowledge on the part of the defendants, that the McNeil place belonged to plaintiff. In this connection, the plaintiff asked the witness : ‘ ‘If the defendants knew the name of the plantation he was renting?” The court,'on the objection of defendants, that the question called for illegal and irrelevant evidence, refused to allow' the witness to answer. The evidence - certainly was not illegal or irrelevant, for if defendants knew the name of the plantation, and 'that the relation of landlord and tenant existed between plaintiff and Shamberger, these were facts pertinent to 'be submitted to the jury, for what they were worth, as tending to show that defendants .knew that the farm belonged to plaintiff, or that they were thus put in possession of a fact which tended to .arouse suspicion of that fact, and was calculated to provoke inquiry concerning it.—Authorities supra; Kelly v. Eyster, 102 Ala. 325, Moreover, if the witness knew the fact about which he was asked, he should have been allowed to answer it.—Code of 1886, § 1798; Code 1896, § 992; Jones v. Hagler, 95 Ala. 529; Huckabee v. Shepherd, 75 Ala. 342; Boggs v. Price, 64 Ala. 514.

-4. The witness Shamberger was handed a certified copy of a mortgage purporting to have been given by him to defendants, and was asked by plaintiff to look at it and see if it was a copy of the mortgage so given. “The counsel for the defendants objected” (employing the language of the bill of exceptions) “to any proof as to the copy of the mortgage, first, because it was secondary evidence of the contents of the mortgage, and. second, because the mortgage purports to have been acknowledged before Jas. T. Beck, judge of probate of Wilcox county, and the instrument must be proved by the subscribing witness; because it was never in fact acknowledged. Counsel for the plaintiff stated to the court that plaintiff did not offer it as a certified copy of the mortgage, but offered it as a memorandum to refresh witness’ memory as to the contents of it. The court asked the witness if the mortgage was not in his handwriting? Counsel for plaintiff said that it was not, but a copy of the original mortgage, and offered as a memorandum to refresh witness’ memory, stating, that on the 8th of April, 1897, notice was given to the defendants, the holders of said mortgage, to produce it, which notice was as follows Here is set out the notice given, which appears lo have been full' as to the description of the mortgage, to show that it was given on the 1st day of February, 1892, “upon all crops grown by the said Shamberger upon the McNeil plantation, and other lands cultivated by said Shamberger in Wilcox county,” Ala., upon mules, etc.; and defendants were notified thereby, “that in the event of their failure to produce upon said trial the original instrument in writing above described, secondary evidence of the contents of said instrument will be offered by the plaintiff.” Service of this notice was accepted by the defendants, on the 8th of April, 1897. The copy of said mortgage, which is nowhere set out in the transcript, was now, as the bill recites, “offered as secondary evidence.”

.The witness also stated, that the mortgage was not in his .possession; that he had searched for it and could not find it; that he owed a balance on said mortgage and that another merchant had paid this balance for. him, and that the papers were -transferred to the other, merchant by defendants,, and witness had not paid the other merchant. There was no pretence that plaintiff was in possession of the mortgage,, and there was,. no evidence tending to show the fact...

The plaintiff it thus appears, having first, sought to introduce this certified transcript of the mortgage, modified this offer by stating that he offered it to refresh the witness’ memory about the original but, after the introduction of other proof, he finally renewed his offer to introduce, the certified transcript of the original.

The Code provides, that such instruments when recorded within twelve months from their date, or. prior to the 15th December, , 1895, may be received in. any court, without proof; and if it appears that the original has been lost or. destroyed, or that the party offering the transcript has not the custody or control thereof, the court must receive the transcript, duly certified, in the place of the original.—Code, 1886, § 1798. The precise objection to the introduction of the transcript of this mortgage, as we have seen, was because it was secondary evidence, and was neither acknowledged nor proved by the subscribing witness thereto. As for these objections, the certified transcript should have been admitted and.not excluded. Proof of the execution of a. mortgage, or an acknowledgment of it, is not indispensable to registration. It may be made without either and operates as notice of its contents,-Code of 1886, § 1797; Code of 1896, § 991; Rickley v. Keenan, 60 Ala. 293.

5. If there was error in excluding that part, of the plaintiff’s testimony, in which he stated that thp $750 draft of his tenant, Shamberger to him, on defendants, for the rent of the McNeil place for the year 1891) had. been paid by defendants, on the ground that it was. hearsay and illegal, it was error without injury, since the defendants proved the same fact by A. Brown, one of the defendants, who afterwards stated on his own examination, that he paid said draft.

6. There was no room for the general charge re quested by plaintiff. The second charge requested by him and refused, was an erroneous instruction. It was the general charge in plaintiff’s favor, unless the jury found from the evidence that plaintiff had waived his lien on the cotton grown on his place in 1892, in favor of defendants. The evidence on the part of plaintiff tended to show, it is true, that defendants came to the knowledge of facts, calculated to put them on inquiry as to plaintiff’s rent lien ; but, on the other hand, that on the part of defendants tended to show, that while the cotton remained on the rented premises of plaintiff, defendants knew nothing of the renting, and that they received, and their right to it accrued, after the tenant removed and shipped it to them in Mobile, and this, without any knowledge on their part, actual or otherwise, that plaintiff had a lien on it for rent.

The lien of a landlord under our present statute prevails against the tenant, while he has possession of the crops,, and against volunteers and purchasers from him without notice; but the lien -will not prevail against those who purchase from the owner, for a valuable consideration, without notice of the lien, and after the removal of the crops from the rented premises. The plaintiff may not have waived his lien, and yet this fact would not entitle him to the general charge in his favor. Scaife v. Stovall, 67 Ala. 237; Andrews Mf'g Co. v. Porter, 112 Ala. 381.

The third charge requested by plaintiff bases the right of plaintiff to recover on the fact that defendants are not bona fide purchasers of said crop, if they received the cotton grown on the plaintiff’s place during the year 1892, in favor of a mortgage indebtedness previously arising from-the tenant, Shamberger, to them, and sold it and applied the proceeds to such indebtedness. If they so-purchased said cotton and sold it, and so applied its proceeds, the instruction is, in substance, that they are liable, even if they had no notice of plaintiff’s lien. Such a principle has no foundation under our present statute and the decisions construing it.—Scaife v. Stovall, 67 Ala. 237; Ehrman v. Oats, 101 Ala. 604; Belser v. Youngblood, 103 Ala. 545.

We are unable'to discover any vice in the four charges requested by and given for defendants. The second is no more in effect, than to exclude from the consideration of the jury, evidence that was. patently hearsay and illegal, competent to be excluded on motion at any stage of the trial.

Beversed and remanded.