65 So. 388 | Ala. | 1914
Appellees brought an action of case against appellant, to recover damages for the destruction of a lien created by mortgage on several bales of cotton.
Appellant claims title to the cotton by virtue of a mortgage executed on the 1st day of January, 1910; and appellees claim by virtue of a prior mortgage executed in July, 1909. The cotton was grown during the year 1910, and consequently plaintiffs did not acquire the legal title by virtue of the prior mortgage of 1909, but, at best, only an equitable right or lien, of which it is claimed the defendant had actual and constructive notice. The trial resulted in verdict and judgment for plaintiffs, from which judgment the defendant prosecutes this appeal.
The first error insisted upon is in the allowing of proof of the mortgage record under which plaintiffs
“The object and effect of the statute are clearly to place the conveyance, as soon as the grantee has discharged his entire part in procuring the record, by having it properly proved or acknowledged and delivered to the officer, in the same attitude as if it were spread upon the record book. This statute relieves a party, who has done all that is devolved upon him by the law, from the consequence of the failure of the probate judge to discharge his duty, or of the imperfect manner in
“In the case of [Seibold v. Rogers] 110 Ala. 438 [18 South. 312], the court said: “Che delivery of the instrument to the probate judge for record ivas all that was required of the plaintiff (mortgagee), to give notice of his lien., He was not required to supervise the act of the probate judge in recording the paper, and hence it is immaterial as far as the plaintiff’s rights are concerned, that the recording officer committed an error in writ- ■ ing the mortgagor’s name Cavis instead of Davis upon the mortgage record.’ It is further stated by the court, substantially, that the conclusion reached could not be otherwise without disregarding the express language of the statute.—Leslie v. Hinson, 83 Ala. 266 [3 South. 443]; Fouche v. Swain, 80 Ala. 151; Heflin v. Slay, 78 Ala. 180; McGregor v. Hall, 3 Stew. & P. 397.”
The trial court at the request of the plaintiffs in writing charged the jury as follows:
“(1) The court charges the jury that if they believe from the evidence that the plaintiffs in this case held a valid mortgage executed in the year 1909 by Soonie Prewitt, upon all the crops raised by him during the year 1909, and each year thereafter until all the amounts secured by said mortgage was paid, and that said mortgage was placed upon record in the probate office of Tuscaloosa county, Ala., prior to the execution of the mortgage by Prewitt and Jones to the defendants, and if they are further satisfied from the evidence that there is a balance due on the mortgage given to the plaintiffs, then they must find a verdict for the plaintiffs unless they are further satisfied that the plaintiffs had waived their lien.”
Ike Jones testified in part as follows:
“I worked with Soonie Prewitt, the person who made the mortgage to plaintiff, and we made a crop together on the Barber place, in Tuscaloosa county, Ala., in the year 1910. At this time Soonie Prewitt was living on this land with»his wife, Julia Barber Prewitt (the widow of one John Barber), and had been living there for five or six years. Soonie Prewitt had been cultivating this land for quite a number of years, and he had me and other persons cultivate a'part of it in 1910. * * The Barber lands belonged to Julia Prewitt, but Soonie Prewitt and I farmed together for the year 1910, and raised the crops sold and delivered to defendants.”
The president of the defendant company J. H. Anders, testified that:
“The cotton delivered to us was grown by the said Jones on the lands rented by him from Soonie Prewitt in 1910.”
Therefore, Prewitt certainly had a possessory interest in the land when he executed the mortgage to Rice
Charge 1, given at the request of plaintiffs, was not reversible error. If it had any misleading tendencies, it could have been, and we think was, corrected, by other and counter charges which were given.
These are all the errors insisted upon, and we find none sufficient to warrant a reversal of the judgment.
Affirmed.