81 So. 140 | Ala. Ct. App. | 1919
This is an action by the appellant against the appellee to recover the proceeds of three bales of cotton raised by one Golson on a farm near Burnsville in Dallas county, known as the Palmer tract. The trial was by the court without the intervention of a jury, and without regard to the special pleadings in the case, the record containing the following statement:
"Both parties consented in open court that trial by jury be waived, and that the complaint be considered as amended to state a cause of action, and that said cause be tried on a plea of the general issue by consent in short for defendant to introduce any evidence admissible under any special plea."
There was only one conflict in the evidence, and that was with respect to whether the defendant agreed with Golson to pay the rent due from Golson to Lamar. This issue of fact must be treated as determined in favor of defendants by the trial court, and under the rules established for reviewing such questions, this record does not warrant us in disturbing the finding of the trial court on this issue of fact. Mulligan v. State,
The mortgage executed by Golson to defendant in April, 1916, so far as is here pertinent, describes the property covered by that instrument thus:
"And to secure the payment of the above note, as well as all else that said Johnson may advance to me in any manner whatever under this instrument, I hereby grant, bargain, sell and convey unto the said J.H. Johnson the entire crop raised by or for me in which I may have any interest during the year 1915, and each succeeding year thereafter until this is paid, in Perry county, Alabama." *649
This description clearly does not cover crops grown in Dallas county, and the defendant cannot justify under it. This brings us to the question in the case: Did Lamar have a lien, as landlord of Golson, on the crops produced by Golson in Dallas county during the year 1915, superior to the right and title of Johnson, under his mortgage executed by Golson in May, to secure him for advances made to said Golson?
Golson in the fall of 1914 made default in the payment of the indebtedness secured by the real estate mortgage held by Lamar, and the evidence shows that, notwithstanding this default, he remained in possession and occupancy of the land up until July, 1915, without any active assertion of the real estate mortgagee, Lamar, of his right to the possession of the land, or steps to intercept and claim the rents and profits thereof. It was while Golson was thus in possession, and after the crop for the year 1915 had been planted, that he executed to Johnson the mortgage on his crop. The rule is well established in this state that until the mortgagee actively intervenes for the purpose of intercepting the rents, incomes, and profits of mortgaged real estate, even after default in the payment of the mortgage debt, these belong to the mortgagor. Ala. Nat. Bank v. Mary Lee Coal Railway Co.,
The mortgagor, Golson, being entitled to the crops of 1915 free from any lien in favor of the mortgagee of the realty, had the right to give a mortgage on them to Johnson, and his mortgage so given conferred upon Johnson a superior title and lien to that created in favor of Lamar, the real estate mortgagee, by the subsequent transaction, effecting a foreclosure of the real estate mortgage, and a rental of the premises to Golson. Mecklin v. Deming,
While the proceeds arising from the three bales of cotton were in excess of Johnson's mortgage, the record does not show when the money was paid to Johnson. This data is necessary to the ascertainment of the amount plaintiff would be entitled to recover, and therefore the judgment will be reversed, and the cause remanded.
Reversed and remanded.