100 So. 858 | Ala. | 1924
Lead Opinion
The appellees Bartlett Byers sued T. W. Ross and W. D. Ross in detinue for three bales of cotton, and a quantity of corn and fodder. Plaintiffs' claim is based on a mortgage executed to them by defendants on March 17, 1921, securing a debt of $1,000, which conveyed to plaintiffs the legal title to this property, and which was in default on November 21, 1921.
The property was seized under a writ of detinue, and thereupon the appellant, W. T. Gillespie, intervened as claimant, filing his affidavit and bond as required by law, setting up that this property was raised on his land during the year 1921, and was delivered to him by W. D. Ross, defendant, before its seizure under process; his claim being based on "a landlord's lien for rent."
Thereupon an issue was made up; plaintiffs alleging that they had the legal title to the property in suit and the right of immediate possession. This was the proper issue, and the burden of proof was on the plaintiffs. Keyser v Maas,
"stands for trial between plaintiff and claimant as though they were original parties plaintiff and defendant, respectively, to a statutory action of detinue — an action involving, not the right to subject property to the satisfaction of a debt as in case of a levy of attachment or execution, but only the legal title and the right of possession of specific property." Slaughter v. Webster,
Plaintiffs offered in evidence the chattel mortgage, as above described, after showing by T. W. Ross that he and his son, W. D. Ross, executed the mortgage. The mortgage was attested by one witness, and claimant objected to its introduction in evidence on the ground "that its execution had not been proven," which objection was overruled. Section 4006 of the Code provides that —
"The execution of any instrument of writing attested by witnesses may be proved by the testimony of the maker thereof, without producing or accounting for the absence of the attesting witnesses."
This changes the common-law rule which required that proof of any attested instrument should be made by the attesting witness, or that otherwise his absence should first be accounted for. Ellerson v. State,
Where an attested instrument is executed by more than one grantor or maker, and its validity and effect depend upon their joint execution — the attesting witness not being produced or accounted for — the testimony of one of the parties that he and the other or others signed it is not sufficient to prove it. Stamphill v. Bullen,
The issue was upon the legal title and right to possession of the chattels sued for, and plaintiffs' legal title necessarily prevailed over the landlord's lien upon which *562
claimant relied, whether the lien was acquired before or after the mortgage was executed to plaintiffs. Houston Nat. Bank v. Edmonson,
This is the view of the writer and of Gardner, J. A majority of the court, however, are of the opinion that, if the claimant's lien antedated the plaintiffs' mortgage, a delivery of the crops to the landlord by the tenant gave to the landlord a legal title or right of possession superior to that of the mortgagee. But all of the justices are agreed that under the evidence before the trial judge he could have properly found that the relation of landlord and tenant did not begin until Ross reconveyed the land to the claimant, Gillespie, and executed to him his! rent note, on July 23, 1921. On that theory of the evidence, plaintiffs' mortgage was superior to the claimant's lien subsequently acquired, and the judgment so declaring will not be disturbed.
The judgment rendered was proper in form and in substance, and was, indeed, the only judgment that could have been rendered in a detinue suit. Slaughter v. Webster,
We find no error in the record, and the judgment will be affirmed.
Affirmed.
All the Justices concur.
Ross himself testified that —
"He was in possession and owned this land in 1920 and 1921." (Italics supplied.)
He further stated:
"That he did not really know just when he rented this place from Dr. Gillespie, because he fell down that fall on his payments; that he told Dr. Gillespie that he would just stay there; that he was trying to get some money; that if he got the money he would make the payment, and if he didn't he would deed the place back to him; that he fell down on the payment and deeded the place back."
On cross-examination by defendant, the witness further said:
"That he had a conversation with Dr. Gillespie about this defaulted payment along the latter part of 1920 or the first part of 1921. That he told Dr. Gillespie in that conversation that if he failed to get the money the only thing be could do would be to deed the land back to him and rent it, that he wanted to stay there that year, and Gillespie told him just to stay ahead, and, 'if I failed to get the money, we would have to make some other arrangements.' I then told him that if I failed to get the money I would pay him rent on this land for the year 1921, and he told me that he would give me a chance on it, to try it."
This testimony falls short of showing with reasonable clearness that Ross then and there contracted with Gillespie to become his tenant for the year 1921, automatically upon his failure to get the money needed to pay off the mortgage debt; and, coupled with the conduct of the parties in the reconveyance of the land, and the execution of a rent note, in July, 1921 it supports a reasonable inference that they had no intention of initiating the relation of landlord and tenant until they took that action in July, and that in the meantime they were simply leaving matters in statu quo by an indefinite extension of the mortgage debt. This view is confirmed by the absence of any understanding (under Ross' testimony) as to the amount of rent to be paid if they should in future "make other arrangements," or as to the time when such arrangements were to be made.
It is true that Gillespie's testimony is in sharp conflict with Ross'; for Gillespie testified that when Ross came to him about the first of the year (1921), Ross then said that he had failed to pay, and would therefore deed the place back and rent it, to which he (Gillespie) agreed. But the trial court was not bound to believe that version of the transaction, and may well have accepted the other.
In urging that under Act Sept. 25, 1915 (Gen. Sess. Acts 1915, p 824), this court is required to review judgments of the trial court, sitting without a jury. "with no presumption in favor of the finding of the trial court on the evidence," counsel overlooks the fact that this court has uniformly held that this provision can have no application where the evidence was given ore tenus, or partly so, and the trial court has the advantage of seeing and hearing the witnesses. In such cases —
"this court will not disturb the conclusion unless it is plainly and palpably contrary to the weight of the evidence." Hackett v. Cash,
It is difficult to see how the statement by Ross that, when he got a deed to this land from Gillespie, he "made Gillespie a mortgage on the land," which was in default in the fall of 1920, can affect the rights of the parties in this proceeding. This mortgage, if it in fact existed, was not offered in evidence, and was not before the court; and there was absolutely nothing in the evidence to show that it was an instrument containing apt words of legal conveyance, nor to *563 show that it was executed in the manner and form required by law for the conveyance of the legal title, and the trial court was not authorized to presume that it was effective for such a purpose. It is to be observed, also, that it does not appear that it was recorded, nor that plaintiffs, who were purchasers of the growing crops for value, had any actual notice of the existence of such an instrument.
These considerations effectually dispose of the argument of Gillespie's prior right, based upon his supposed right to the possession of the land as mortgagee of the legal title after default — a status which, as we have shown, finds no support in the evidence. The comparative status of Gillespie's landlord's lien is therefore not aided or improved by the predicate of a legal title to the land, carrying with it the right of possession, prior to the inception of the chattel mortgagees' title to the growing crops.
Our view of the evidence excludes the application of the principle announced in the cases of Waite v. Corbin,
The application will be overruled.
All the Justices concur, except THOMAS, J., who dissents.
Addendum
The claimant, Gillespie, was in the status of a mortgagee in possession of the mortgaged premises after the law day and default in payment. He was entitled to the rents (not specifically pledged) for the year in which the possession was taken. The relations of claimant, Gillespie, and Ross arose out of the sale of land and mortgage for the purchase price due in the fall of 1920, which was defaulted, and thereafter the agreement of tenancy entered into on January 1, 1921.
When the mortgagor is allowed to remain in possession after the law day, he is entitled to take the rents and profits, unless (1) they are specifically pledged, or (2) unless the mortgagee claims or intercepts them by exercising his legal or equitable remedies — (A) by notice to the tenant to pay the rents to him as they accrue, (B) by entry on the land, as by recovering the possession by action at law, or (C) by foreclosure in equity, with or without the appointment of receiver. Coker v. Pearsall,
In Draper v. Walker,
The rights and liabilities as between different mortgagees have been the subject of discussion by this court. A first mortgagee having taken possession of the mortgaged property without objection or by consent of the mortgagor, his right to rents accruing during that possession before the filing of a bill by the second mortgagee was the subject of Falkner v. Campbell, supra. There is analogy to this case in the holding that, the first mortgage being declared void, there was a liability to the second mortgagee for rents. It is there said:
"The principle is too well settled in this state, either for controversy or discussion, that the mortgagor is the owner of the mortgaged premises, as against all the world except the mortgagee. He is therefore entitled to the rents, incomes, and profits of the mortgaged property, so long as the mortgagee fails to disturb his possession or right by the interposition of a legal claim to them. This claim may be made, as is well settled, by filing a bill for foreclosure, accompanied with the appointment of a receiver, by taking possession, or by otherwise giving notice in the nature of a demand. Johnston
Stewart v. Riddle,
The cases of Scott v Ware, supra, and Johnston Stewart v. Riddle,
"When the mortgagor dies in possession of the mortgaged premises, his widow is entitled to remain in possession, taking the rents and profits, until her dower is assigned, or until the mortgage is foreclosed; and she will not be charged with rents and profits, as a mortgagee in possession, at the suit of another mortgagee, *564 because she took an assignment of the mortgage after her husband's death."
When the mortgagor and mortgagee changed their relation as to the lands (as they had the right to do after the law day of the mortgage) to that of landlord and tenant, the latter rightfully delivered the accruing rent to the former. This he may do despite the chattel mortgage given on the crops to be grown on the mortgaged premises. It will be noted that the chattel mortgage was given on July 23, 1923, after the law day of the first mortgage and default was made in payment of that mortgage.
Thus we are brought to a consideration of five decisions by this court: Waite, LaFils Co. v. Corbin,
In Waite, LaFils Co. v Corbin, supra (1895), the theory of the defense was that a mortgagee who takes a mortgage upon a crop to be planted or growing, without any notice that the mortgagor in occupancy of the land is or may become a tenant as to the crops by reason of the contract under which he obtains possession of the land and the right to plant the crop, is an innocent purchaser in the sense that his mortgage lien is superior to that of the landlord. It was held that the plea did not present a defense to the complaint; that the fact that the mortgagee may have believed that the mortgagor-tenant was the owner of the land, and that the chattel mortgage was taken in good faith, cannot avail him against the right of the landlord, when his action was not affected in any way by the landlord. The court said:
"The fact that the tenant declared that he owned the land, or the mortgagee may have believed that he was the owner, and took his mortgage in good faith, his belief and action not having been superinduced by the landlord, cannot avail against the right of the landlord."
The relation of the parties on which this decision is predicated was that of a contract of sale of lands, with deferred payment, and which contained a condition for re-entry on default. There was default, after the giving of the mortgage by said vendee, and the title to said rents was held to be in the landlord as against that of such mortgagee.
The next case in the order cited is British American Mortg. Co. v. Cody (1902)
The two cases should be distinguished from that in which a deed is given and subsequently the land is deeded back to the first grantor, and a tenancy created at the time of such reconveyance by agreement of that date. In the latter case a chattel mortgage, on the crop grown on the land, given before default, and such agreement of tenancy and reconveyance of the land, was held to take precedence (Mecklin v. Deming,
In the instant case the purchase money was secured by mortgage, and deed was made to the vendee and duly recorded. The mortgage was due in the fall of 1920, and there was default, and the promise to give time that fall for further effort for payment. Failing in that behalf, in December, 1920, or the 1st of January, 1921, the parties agreed on resurrender of the possession, and their relation became that of landlord and tenant. This is shown by Ross' testimony as follows:
"That he had a conversation with Dr. Gillespie about this defaulted payment along the latter part of 1920 or the first part of 1921. That he told Gillespie in that conversation that, if he failed to get the money, the only thing he could do would be to deed the land back to him and rent it, that he wanted to stay there that year, and Gillespie told him just to stay ahead, and, if I failed to get the money, we would have to make some other arrangements. I then told him that if I failed to get the money that I would pay him rent on this land for the year 1921, and he told me that he would give me a chance on it, to try it. This was in the fall of 1920, either just before or just after Christmas. Mr. John Pullen was present and heard this conversation between us. I did not get the money and fell down on this payment. I paid him rent on this land for the year 1921. I did not pay him any rent for the year 1920. *565 After our conversation, I stayed on this place for the year 1921 and paid him rent for that year. I paid him rent in the fall of 1921."
Dr. Gillespie testified:
"He [Ross] came to my office again the latter part of December or first of January, 1921, and said that he had failed to pay me and would rent the place and give me a deed back to it. I told him that I agreed to that. This was in January, 1921. The last conversation I had with him about it was in February, 1921, at Gadsden. He told me there that he would sign the deed whenever I fixed it. I told him I would fix the deed right away, but I did not do it then."
The witness to the conversation, Mr. Pullen, testified:
"That this was about January 1, 1921, and that there were present upon this occasion Ross, Gillespie, and the witness only That Ross was talking about what he owed Gillespie, and Gillespie told Ross it looked like the shape that he was in he couldn't carry it on, that he would have to have a little money and Ross said that he thought he could get some money, and that, if he didn't all he could do would be to deed the place back to Gillespie. Ross further told Gillespie in that conversation that he wanted to stay on the place, that he had got to stay somewhere, and that he would just rent the place from Gillespie."
The fact that the chattel mortgagee believed that his mortgagor (Ross) owned the land cannot avail him against the right of Dr. Gillespie, shown by the foregoing evidence to have been the landlord since January, 1921. The relation of the parties was not affected in any way by the landlord, but by the default of Ross in payment of his mortgage — the failure of his title. The holding of the majority has limited the right of the mortgagee in possession after default (the landlord), and its effect is to make superior thereto a mortgage taken without actual notice of the defect of mortgagor's title. This defect he is held in law to have known. It cannot with reason be said that the mere record of the chattel mortgage, taken and recorded after default had been made on the prior mortgage and possession surrendered, gained ascendency over the true owner of the land, merely because the parties thereto assumed the relation of landlord and tenant in accord with their prior relations, of which plaintiff is held to have had notice or knowledge.
The case, in principle, is not to be differentiated from Hughes Tidwell Supply Co. v. Carr,
The failure to pay the purchase price installments makes the mortgagee's right of possession absolute. (1) This right existed before plaintiff's mortgage was executed and of which the latter had notice; (2) the agreement of the parties to the first mortgage related to their deed of reconveyance — this was the legal effect of the default and taking possession by mortgagee; (3) it was the default of which plaintiff is held to have had knowledge, or the means of knowing by virtue of the title and possession, that created in the common mortgagor a tenancy at will for 1920; (4) this relation of all the parties should be given the just result of allowing the loss to fall on him who sought security from a mortgagor who had only been a tenant at will during the fall of 1920. Hughes Tidwell Supply Co. v Carr,
I cannot agree with my Brothers.