It is immaterial what effect the assignment by Collins of his interest in the property belonging to the firm of Collins & Ham had upon the partnership, or whether the assignee and Ham constituted a new partnership. The assignment, at least, operated to vest Collins’ interest in the assignee, and to make him, jointly with the other partner, the owner of the assets which had belonged to the partnership, among which was the mortgage covering the cotton alleged to have been converted. And this suit was instituted, and properly so, by these joint-owners, or owners in common, as such, and not. upon any theory of a new and continuing partnership. It was shown that the mortgage, and a note for the amount secured by it, were executed to Collins & Ham. The transfer by Collins to P. J. Ham was sufficiently specific to invest the latter with the former’s interest. It further appeared that both the note and mortgage came to the possession of P. J. and J. N. Ham. The objections taken in the court below, on the ground of a want of interest in P. J. Ham, were, therefore, properly overruled.
The evidence tended to show that, at the time of the execution of the mortgage, the mortgagor had made a contract for the rental of the lands on which the cotton alleged to have been converted was subsequently grown. It does not appear that this contract referred, nor was it essential, in our opinion, that it should have referred, to “a definite place,” in the sense that term is used in the charge requested by the defendants. A valid contract for the rental of a given quantity of land out of a larger tract, or for the rental of one or another of several tracts, the particular tract or place to be thereafter selected by the tenant, of determined upon in any practical way, would carry such a present interest in the land, afterwards segregated and subjected to the contract, as would give vitality and validity, in equity, to a mortgage of the crops to be planted and grown thereon. The charge requested was misleading, and there was no error in its refusal.
A part of the cotton alleged to have been converted had been, according to some of the testimony, raised on rented land, and was, at the time of the conversion, subject to a landlord’s lien, which was, of course, superior to plaintiffs’ mortgage. The evidence tended to show, further, that twenty dollars of the proceeds of the sale to defendants was paid by the mortgagor to the landlord, in satisfaction of the
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claim for rent. The court was requested in writing, and refused, to charge the jury that this state of facts, if found to exist, entitled the defendants to a reduction of damages to the amount so paid. It is insisted that, inasmuch as this is an equitable action, and open to equitable defenses, the payment thus made, not by the defendants, or as a part of the transaction in which the conversion was consummated, but by a third person, and subsequent to the conversion, was in satisfaction of a prior lien, and, hence, enured to the benefit of the plaintiffs, and their recovery, in equity and good conscience, should be mitigated to the extent their security was freed from this incumbrance.. Had this action been against the mortgagor, there would be more force in this position, for clearly he not only had the right, but it was his duty, to discharge the landlord’s lien for rent. Or, had the case been one involving the general ownership of the property, and it had appeared that the fruits of the conversion had been applied, by the consent, express or implied, of the plaintiffs, or through legal proceedings had at the instance of a third person, to the payment of their debt, or in relieving their property from a lien, the damages recoverable by them in trover might be mitigated by the amount thus paid for
them.—Bird
v.
Womack,
We are unable to draw any line of distinction between the case quoted from and that under consideration, on the point involved in thte second instruction requested. Its refusal was free from error; and the judgment of the Circuit Court is affirmed.