Hurst v. Bell & Co., 72 Ala. 336

Hurst v. Bell & Co.

72 Ala. 336 | Ala. | 1882

BBICKELL, C. J.

1. The motion to dismiss the appeal can not be sustained. Originally, an appeal or writ of error would not lie from a judgment founded on a voluntary nonsuit, though the plaintiff elected to submit to it in consequence of decisions and rulings of the court adverse to his right of recovery. Tiie statute now (Code of 1876, § 3112) authorizes submission to a nonsuit, and the review on bill of exceptions of the ruling or decision compelling the plaintiff to that course, or to submission to a final judgment barring another suit. The construction the statute has received is, that it is limited to such rulings and decisions of the court as are the proper matter of a bill of exceptions, and which, without a bill of exceptions, can not properly appear of record. To decisions made on demurrers to pleadings, which necessarily form part of the record, the statute does not apply, and an appeal will not lie from a judgment on a nonsuit taken in consequence of such decisions.—Palmer v. Bice, 28 Ala. 430; Paulling v. Marshall, 47 Ala. 270; Darden v. James, 48 Ala. 33. It is recited in the judgment-entry in this case, that thq nonsuit was taken in' consequence of the rulings of the court below on the demurrer to the complaint; and if the recital stood alone, or if the contrary was not otherwise shown clearly by the record, the motion to dismiss the appeal would be well taken. There is, however, a bill of exceptions taken to instructions to the jury given and refused by the court below, which is concluded with the recital, that, after the giving and refusal of the instructions, the plaintiff submitted to a nonsuit, with leave to move to set aside the same in this court. If the recital in the judgment-entry were taken as true in point of fact, the record would present the anomaly of a trial before a jury, after the cause was out of court in consequence of a nonsuit having been taken by the plaintiff; for, of course, the decision upon the demurrer to the complaint must have preceded the trial before the jury. It is essential that the record should affirmatively show that submission to the nonsuit was in consequence of the adverse rulings of the court; that it was -not the mere election of the plaintiff to forbear the further prosecution of the suit. — 1 *340Brick. Dig. 88, § 52. The case is one, of not infrequent occurrence, where there is a conflict between the judgment-entry and the bill of excejitions, as to matters of which the bill ought to speak; and in such cases, the rule is well settled, that the recitals of the bill must be taken as true. — 1 Brick. Dig. 252, § 139-

3. After the demurrer to the complaint, for a misjoinder of counts, was sustained, and the first count was stricken out, a single count was left, upon which the trial was had before the jury. The count is in case, for the conversion by the defendants, by sale, of cotton on which the plaintiffs claimed to have an equitable mortgage, of which the defendants had notice. It has been decided repeatedly in this court, that case is the appropriate remedy to recover damages for the conversion of chattels, upon which a party has a mere lien, or an equitable mortgage. Not having the legal title, upon which trover, trespass, or detinue could be supported, case lies, upon the general principle, that as there is a tortious act, from which damage results, the law must furnish a remedy; and as the established forms of action are inappropriate, case will be maintained, rather than the wrong shall go unredressed.—Kelly v. McCaw, 29 Ala. 231; Hussey v. Peebles, 53 Ala. 432; Lomax v. LeGrand, 60 Ala. 537; Rees v. Coats, 65 Ala. 256; Grant v. Steiner, Ib. 499; Elmore v. Simon, 67 Ala. 526.

4. The mortgage was executed in November, upon a crop of corn and cotton to be grown the succeeding year on a designated plantation, then in the possession of the mortgagor, under a lease for the year, and which he contemplated renting the next year, but had not made any contract therefor. The court instructed the jury, that, under these facts, the unplanted crops were not the subject of sale or mortgage. It is true, that un-planted crops, or other things not having an existence actual or potential, but the future acquisition of which is merely expected or contemplated, are not the subject of sale, assignment, or mortgage, according to the common law. A different doctrine, however, prevails in a court of equity. The sale, or mortgage, or assignment, does not pass the legal title to such property, unless, after it conies into existence, the vendor or mortgagor shall do some new act for the purpose of ratifying or can’ying it into effect. Nevertheless, it creates an equitable interest, attaching to the property when it is acquired, or when it comes into existence, that a court of equity will enforce and protect against all persons other than bona fide purchasers without notice.—Abraham v. Carter, 53 Ala. 8; Booker v. Jones, 55 Ala. 266; Stearns v. Gafford, 56 Ala. 544; Thrash v. Bennett, 57 Ala. 156; Grant v. Steiner, 65 Ala. 499. Though the mortgagor had not, at the time of the mortgage, rented the *341lands on which the crops were to be grown, and the renting, like the crops which were to be grown, rested in mere expectancy; yet by the mortgage, which was founded on a valuable consideration, a lien or charge was created, which, in a court of equity, and upon plain principles of right and justice, attached to the crops as they came into existence, when the lands were rented subsequently. In view of the evidence, so far as it is recited in the bill of exceptions, the instruction is erroneous. The jury could have accepted it in no other sense than as operating the utter invalidity of the mortgage.

This error compels a reversal of the judgment, and the setting aside of the nonsuit; and the cause will be remanded.