Hawkins v. Damson & Abraham, 62 So. 15

Hawkins v. Damson & Abraham

62 So. 15 | Ala. | 1913

Lead Opinion

ANDERSON, J.

The undisputed evidence shows that Stephens had rented the land upon which part of the cotton was grown from R. E. Spragins, and that said Stephens subrented it to Lee, who raised the cotton. This made Stephens the landlord of Lee, notwithstanding they made the rent notes payable to Spragins, and with which he had nothing to do, as he rented the land to Stephens, never saw the notes, and never knew that Lee had rented from Stephens. Stephens, being the landlord of Lee, had a lien under the statute for the advances made his tenant; and the plaintiff, the assignee of the claim, became the assignee of the lien, and had a right to maintain the suit against any one who destroyed his lien.

The defendants attempted to invoke the defense of an innocent purchaser, but in that they have failed. There may be a conflict in the evidence as to whether or not the defendants got notice of the plaintiff’s lien before or after purchasing the bale.of cotton from Lee; but whether it ivas after or before the consummation of the trade the defendants show that they merely gave *86Lee credit on Ms account for the proceeds. Merely entering a credit on an account past due, without surrendering anything valuable, would not constitute the creditor a bona fide purchaser. He must give up something of value, so as to materially change his position, such as a surrender of the evidence of indebtedness, or prior security. If he simply credits the debtor’s account with the value of the thing purchased, and gives up nothing, and his title should fail in case the debtor had no right to sell to him, and the superior title or lien upon the thing sold deprived the creditor of same, his debt would remain unsatisfied. — First Nat. Bank v. Nelson, 105 Ala. 180, 16 South. 707; Spira v. Hornthall, 77 Ala. 137. Here the defendants merely passed the price of the cotton to the credit of Lee, and upon failure of Lee’s title or right to sell said cotton the defendants’ account against Lee remained unsatisfied, and the credit would be canceled.

The trial court erred in refusing charges 1 and 2, requested by the plaintiff, and the judgment is reversed, and the cause is remanded.

Reversed and remanded.

All the Justices concur, except Dowdell, C. J., not sitting.

Rehearing

ON REHEARING.

ANDERSON, J.

The appellant suggests that the opinion fails to take account of the doctrine of estoppel in this case. This point was considered in the preparation of the opinion and the consideration of the case, but was so wanting in merit that the same was not discussed in the opinion. Stephens and his assignee were not bound by any statement that Lee, the tenant, made to the defendants, when he executed the mortgage, as to the party from whom he was renting the land. It *87is true that Damson testified that Stephens told him in July or August that he was not renting Lee any land; but he does not show that he parted with anything of value upon the strength of said statement. It appears that the mortgage was taken long before said statement was made, if it was made, and which Stephens denied, and for aught that appears the items constituting defendants’ claim may have all been sold before July or August.' — Farrow v. Sturdivant Bank, 181 Ala. 283, 61 South. 286; Goetter v. Norman, 107 Ala. 585, 19 South. 56; Fields v. Killion, 129 Ala. 373, 29 South. 797.