Lead Opinion
The subject of mortgages on unplanted crops, not in esse at the time of the conveyance or assignment, has been the subject of much discussion, and the adjudged cases are greatly conflicting. Some of them hold that such a mortgage is void, and conveys no title to the crops, either legal or equitable. — Hutchinson v. Ford, 9 Bush (Ky.) 318; s. c. 15 Amer. Rep. 711; Comstock v. Scales, 7 Wis. 159. Others hold that they are valid at law, and good to convey a legal title.— Arques v. Wasson, 51 Cal. 620; s. c. 21 Amer. Rep. 718; Robinson v. Ezzell, 72 N. C. 231; Jones on Chat. Mortg. §143. Neither of these extreme views, however, has been adopted by this court. Its doctrine in reference to this subject is now firmly settled, that a mortgage executed by the owner, or the lessee of land, on a crop which is not planted, but is to be planted in fui/a/ro, conveys to the mortgagee a mere equitable interest or title, which will not support an action of detinue, trover, or trespass. — Grant v. Steiner, 65 Ala. 499; Rees v. Coats, Ib. 256; Booker v. Jones, 55 Ala. 266; Abraham v. Carter, 53 Ala. 8. This view, is, in our opinion, supported by the weight of authority. — Moore v. Byrum, 30 Amer. Rep. 58; [s. c. 10 S. Ca. 452.] note, p. 63; Fonville v. Casey, 4 Amer. Dec. 559, note, p. 560; Sillers v. Lester, 48 Miss. 513; and other cases cited in Grant v. Steiner, supra.
“•Land is the mother and root of all fruits. Therefore he that hath it may grant all fruits that may arise upon it after, and the property shall pass as soon as the fruits are extant.”, — Grantham v. Hawley, Hobart Rep. 132. There can be no valid distinction between the wine a vineyard is expected to produce, and the grain or cotton a field is expected to grow, except as to the relative amount of skill and personal labor that may be expended in the two cases. ' Each is the product of property, owned in ypraesenti by the vendor in the case of a sale. — Story on Sales, § 183. In. Andrew v. Newcomb, 32 N. Y. 417, it was said: “ In the case of crops to be sown it [the title] vests potentially from the time of the executory bargain, and actually as soon as the subject arises.” In other words, the lien attaches eo instanti, when the property comes into existence. They come into being together and co-exist, and equity executes the contract by holding that done which is agreed to be done. So, soon as the crop, or other thing mortgaged exists, the vendor, or his assignee with notice, becomes a trustee ‘holding the legal title for tire benefit of the mortgagee. And whenever this equitable ownership, or interest, is once established, the courts will interpose for its protection. — Sillers v. Lester, 48 Miss. 513.
It is plain from these principles that the mortgage executed by Pendergrast to the appellees, Taylor & Co., on February 5, 1880, conveyed to the latter an equitable title or interest in all the crops raised during the current year, on the lands, by the mortgagor or “by his procurement.”
The question presented is, whether he can be permitted, before the planting of the crops and after making this conveyance, to assign an interest in them to a third person, to the prej
Our opinion is that, under this state of facts, the interest taken by Mrs. Kelley in the crops to be grown, was taken subject to the equitable lien already created, and of which she had notice. The contribution made to the partnership by Pendergrast was the land with its potential capacity for future products, and his teams and personal services. These were already subject to the operation of an agreement creating an equity against them. When the products or crops came in esse, the mortgagor was to hold the legal title as trustee for the first mortgagees. The interest assigned to the partner, who was let in, was an undivided half interest as tenant in common of every thing produced. The assignee, Kelley, could acquire no greater interest than the assignor had, and must therefore have taken it oum onere. Nemo flus juris ad aliwn transfer re potest, quam ipse habet. (Coke Litt. 309, b.) As between the conflicting liens of the two mortgages, we see no reason which rescues them from the operation of the maxim, that “he who is first in time is stronger in right.” The mortgage given to the defendants, Mayer- & Co., being taken with full notice of the mortgage previously executed to plaintiffs was subordinate to it, and the court ruled correctly in so charging.
The judgment is affirmed.
Dissenting Opinion
dissenting. — I differ with the majority of the-, court in this case.
Pendergrast had rented lands for the year 1880, on which he. proposed to make a crop. On the 5th of February, 1880, he executed a mortgage to C. IT. Taylor & Co., and therein conveyed to them “ the crop of cotton which he .might raise or procure to be raised” on said rented land during that year, to-secure payment to them for a horse and other things advanced to him to make a crop. The mortgage was recorded in the-proper probate office, February 18, 1880. It is common know!.
After the execution of the mortgage described above, but before the crop was planted, Pendergrast formed a partnership with Mrs. Kelley in the lease of said land, and in the crop to be grown thereon; and the crop was made by means and labor furnished by each — a son of Mrs Kelley laboring for her. This partnership was to be equal in profits and losses; and each furnished the same amount- of team and labor.
On the 14th of May, 1880, the firm or partnership of Kelley & Pendergrast executed a mortgage on their crop, to defendants, Mayer & Co., to secure them for advances the latter merchants made to the firm, to eirable them to make the crop. The present contention is over the cotton grown by said firm of Kelley & Pendergrast on said rented land. The Circuit Court ruled that Taylor & Co., the mortgagees of Pendergrast, had a paramount lien on the whole crop grown, over Mayer & Co., the mortgagees of the partnership; and my brothers have affirmed the judgment of the Circuit Court.
My own judgment is, that Taylor & Co. have a prior lien on Pender^rast’s half of the cotton, and only on that half. This lien, I think, is paramount to that of Mrs. Kelley, the co-partner, and to that'of Mayer & Co., the mortgagees of the firm. In the absence of prior liens, and of stipulations to the contrary, each partner has a lien on the partnership effects for any balance that may be due him, for excess of disbursement’s by him, and for the liquidation of partnership liabilities. But this lien has its inception in the formation of the partnership. It can not override fonner liens, created by the individual before he entered into the partnership. Coming in with a lien uj>on it, that encumbrance remains upon the share of assets the encumbrancer bi’ings into the firm, until it is discharged; and the lien the co-partner acquires in the formation of tire partnership, is subordinated to this prior lien, if there was notice, actual or constructive, of its existence. All would admit this to be the rule, if the stock put in and made common by the formation of the
IIow does this question affect the parties to this suit? The mortgage to Taylor & Co. was of the crop of cotton which Pendergrast might raise, or cause to be raised. The meaning of this language evidently is, that he conveyed the cotton that should he raised by him and/b?’ him on that land. It can not mean more. He might surrender, forfeit, or sell his lease. He might dispose of a part of it. In the one case he would raise or procure to be raised nothing; in the other, only a partial crop. Suppose he had sublet a separated part of the land to Mrs. Kelley. Could Taylor & Co. claim a lien on the crop then raised by Mrs. Kelley ? Can the fact that Pendergrast sublet to her an individual half interest, or a common interest in the lease, instead of a separate interest, make any difference ? He could not, and did not dispose of her earnings. It was the crop he might raise or procure to be raised, which he mortgaged. He neither raised, nor procured to he raised Mrs. Kelley’s share of the crop. Consequently Taylor & Co. acquired no interest in it under Pendergfast’s mortgage. They took the mortgage with all 'these risks, and, in my judgment, have a lien on Pendergrast’s half. Mayer & Co. should have the other half, under their mortgage from Kelley and Pendergrast.