68 So. 716 | Ala. Ct. App. | 1915
The only assignments of error made relate to the conclusion and judgment of the trial court on a special finding of facts made by it, sitting, by agreement of the parties, without a jury. — Code, § 5359 et seq.
(1) No request for a special finding of the facts was made by either party, but the court, in the exercise of its discretion, made ex mero motu such a finding, which is set out in the'bill of exceptions; and on appeal — its conclusion and judgment on the facts so specially found having been assigned as error— it becomes the duty of this court to examine and determine, in the same way as if there had been a request for such finding, whether or not such facts are sufficient to support the judgment. —Sayre v. Weil, 94 Ala. 470, 10 South. 546, 15 L. R. A. 544; Brock v. L. & N. R. R. Co., 114 Ala. 432, 21 South. 994; Code, § 5361. There is no merit in the suggestion of appellee that the finding does not constituté a special finding.—Lanford & Co. v. Mathis, 9 Ala. App. 434, 62 South. 967.
From these fácts so found by the court it concluded that the relationship between McFry and Brown was one of hirer and hireling, under section 4743 of the Code, which, if true, vested in McFry the legal title to the crops, and in Brown only a lien upon them for the value of the portion of the crop to which he was entitled. — Code, § 4743.
In this conclusion as to the relationship between the parties we are of opinion that the court erred. The agreement between McFry and Brown that the. guano should be paid for out of the crop before any division between them of the crop was tantamount to an agreement to divide equally between them the cost
Clearly, therefore, we think McFry had a lien on Brown’s portion of the crop for one-half of the cost of the guano furnished by McFry in the making of the crop, which lien is perhaps superior to plaintiff’s mortgage, though this question is not before us.
While it is true that the sale here was made prior to September 23, 1913, which was before plaintiff’s mortgage, which did not mature until November 1, 1913, was due, and that ordinarily a mortgagee cannot recover in trover for a conversion done prior to the maturity of his mortgage (Heflin & Phillips v. Slay, 78 Ala. 180), yet, as to the half interest of Brown in
The court érred, therefore, in finding and rendering judgment for defendant, and the judgment is consequently reversed.
Reversed and remanded.