11 Ala. 977 | Ala. | 1847
The principal question in the cause, whether a growing crop of cotton, can be the subject of such a conveyance as this, appears to be fully established in the cases of Ravisies v. Alston, 5 Ala. 297, and Adams v. Turner & Horton, Ib. 470, where it is explicitly declared, that a growing crop has such an existence, as may be the subject matter of a sale, mortgage, or other contract, to vest in possession, either immediately or at some future time. This doctrine is well supported, both by reason and authority.
In Curtis v. Auber, 1 Jac. & W. 510, an assignment of the present, and future earnings of a ship was sustained by Lord Eldon. So an assignment of freight earned, or to be earned by four ships, was held to be good by the vice chancellor, in Douglass v. Russell, 4 Sim. 524, and affirmed on appeal to the Lord Chancellor. In the recent case of Langton v. Horton, 1 Hare, 549, which was a deed of assignment by way of mortgage, of a whale ship, her tackle, &c.; and all oil, and head, matter, and other cargo, which might be caught, and brought home in the ship, on, and from her then present voyage. In this, as in most of the preceding cases, the question arose, as in this case, between an execution creditor of the assignor, and the assignee, as to the future cargo, or earnings of the vessel, after the assignment, and the vice chancellor held, the conveyance to be good. He said, “ it was impossible to doubt, for some purposes at least, that by a contract, an interest in a thing not in existence at the time of the contract, may, in equity, become the property of a purchaser for value.”
In Mitchell v. Winslow, 6 Law Rep. 8 No. 350, Judge Story reviewed all the leading decisions upon this subject,
Chancellor Kent in his commentaries, 3 vol. 5 ed. 488, note, speaking upon this subject, says, “ It is sufficient, that the thing contracted for has a potential existence, and a single hope, or expectation of means, founded on a right in esse, may be the object of a sale — as the next cast of a fisherman’s net, or fruit, or animals not jmt in existence.”
The facts of this case bring it within the limits of most of those cited. It was not the sale of an article to be obtained, or produced in.future, as the product of something then inex-istence, but it was the sale of the crop then growing. It had an actual, and not a mere potential existence, and by the operation of the laws of nature, would certainly be perfect in the course of the season. It is considered by Lord Eldon, in the case of Curtis v. Auber, supra, a settled principle, that wool growing on the backs of sheep may be assigned, and that even an assignment of the future fleeces would be good in equity ; and certainly there can be no rational distinction between wool growing on the backs of sheep, and cotton maturing in the field. See also, Robinson v. Macdonnel, 5 M. & S. 228.
It is also urged, that this conveyance is void for uncertainty — that although the conveyance of an entire growing crop might be supported, this cannot, because it attempts to convey an unknown, unascertained, and uncertain portion of it. The conveyance is of “ fifty thousand pounds of cotton, to be produced during the present year, upon the plantation of the party of the first part, in the county of Marengo, the said cotton to be the first cotton which may be gathered from the crop of cotton now planted, and growing upon the said plantation, and to be neatly ginned, and packed in good bales, ready for market.”
If the conveyance of the entire growing crop would be supported, we are unable to perceive why an ascertained quantity and portion of the crop, would not fall within the same
We shall briefly consider the other questions, in the order in which they are made. It is true, that where an execution is levied on property secured by a mortgage or deed of trust, as a complete remedy exists at law, by the trial of the right of property, a resort cannot be had to a court of equity. But in this case, it is expressly alledged that the trustee refuses to take the necessary steps to have a trial of the right, and this allegation not being controverted, or put in issue by the answer, must be considered as admitted. This takes the case out of the rule laid down in Marriott & Hardisty v. Givens, 8 Ala. 706. The cestui que trust has no means of compelling the trustee to make the affidavit, and execute the bond which the statute requires as preliminary to a trial of the right of property, and if he refuses to do so, the beneficiary may resort to a court of chancery for protection.
The objection cannot be made in this court, that there is no proof that Lane had parted with his interest to the complainants, as the fact was not denied or put in issue by the defendants. In Hubbard v. Moore, 4 Ala. 192, the plaintiff’s title was directly controverted, and upon that ground, it was held to be necessary he should prove that his co-partners had transferred their interest to him. That was a case in which
There was no error in refusing to suppress the deposition of Gaudy, because it did not answer fully the cross interrogatory, as the question which he omitted to answer was wholly immaterial, and if answered, could have had no influence upon the case.
The supposed ambiguity in the deed does not belong to that class which admits of explanation by parol proof; but in our opinion the alledged ambiguity does not exist. We consider the terms, “fifty thousand pounds of cotton,” to mean that quantity of baled cotton. This is shown by the context, the object and purpose of the deed, and the debt it was intended to secure. Besides, conceding it to be susceptible of two meanings, that construction should be put upon it, most favorable to the grantee, especially where that construction accords with the professed object of the parties, the security of the debt, whilst the other would ún a great measure defeat it.
The remaining questions, arise out of the registration of the deed, and the authority of the agent. The probate is alledged to be insufficient, because it omits the word “ delivered.” In Hobson v. Kissam & Co. 8 Ala. 360, the constituents of the probate of such a deed as this, were considered by us at length, and we there held that the omission in the certificate of probate to state that the deed was executed on the day of its date, did not prevent its registration under the act of 1828. That decision is fully in point in this case, for certainly the omission to state in the probate that the deed was delivered, could not be material, when the fact that it was registered upon the acknowledgment of the grantor, necessarily includes a delivery of the deed.
It is further urged, that the agent had no authoritylo make an acknowledgment of the execution of the deed, for
It also supposed that the deed was acknowledged by the attorney in his individual capacity, and not as agent, and that it is therefore insufficient. Its language is “ personally appeared before me, &c. James H. Dubose, attorney in fact for Isaiah Dubose, and acknowledged, that he signed, sealed, &c. the foregoing deed on the day of the date thereof, to the therein named John T. Lomax,” &c. The reasonable construction to he put upon this language is, that he acknowledged the deed on behalf of, and as the agent of his principal, as otherwise there is no motive for the recital of the fact, that he appears as the attorney of another person. But when the acknowledgment is considered in connection with the deed to which it refers, all doubt is removed, as it relates to a deed which was executed by him as the attorney in fact of Isaiah Dubose. No particular form of words is necessary to manifest the intent. It is sufficient if it can be gathered that the intention was to act as an attorney, and not in his individual capacity.
This disposes of the entire case, and ascertains that the chancellor did not err in the decree rendered; it is therefore affirmed.
The cause was re-argued on petition of the plaintiff in error.
[Opinion of the court upon the re-argument.]
We retain the opinion first expressed, that the terms “ fifty thousand pounds of cotton,” mean ginned cotton, and not cotton as it is gathered from the plant, and from which the seed has not been separated. No other construction can reasonably be put upon the language employed, whether it be considered in reference to the object the parties had in view, or the thing contracted for. In common parlance, when one speaks of cotton, unless the contrary is expressed, or necessarily to be inferred from the context, or subject matter, the pure commodity, separated from the seed, is understood. Thus, if one was speaking of the quantity of cotton a hand could pick or gather in a day, he would be understood to mean cotton from which the seed had not been separated. But if he was speaking of the price of cotton, or offering to sell cotton at a stipulated price, he would be understood to refer to pure cotton, from which the seed had been separated, unless the context showed he meant otherwise. This was in effect a sale, as it was in fact, an appropriation of so many pounds of cotton to the payment of a debt, and unless the contrary were expressed, or necessarily to be inferred from the context, the language must be understood in its natural and ordinary acceptation. The fact, that the plaintiffs in error were not parties to this contract, can make no difference in the rule of construction which must be applied to it. They claim under the maker of the deed, and are bound by all the inferences and presumptions which would affect him.
The other question is one of more difficulty. In the outset, a conveyance is made of “ fifty thousand pounds of cotton, to be produced during the present year, on the plantation of the party of the first part.” If it had stopped here, it would clearly have been a lien created on the entire crop, but the deed proceeds to state, “ said cotton to be the first cotton which may be gathered from the crop of cotton now planted and growing,” upon the said plantation, and to be
We have already seen, that the conveyance was not seed cotton, but of fifty thousand pounds of pure, or ginned cotton, and until the cotton was separated from the seed, it was not the thing conveyed, something remaining to be done, by which to ascertain the quantity to which the trustee was entitled. Until this was done by ginning and baling it, the property in question did not pass to the trustee, though doubtless he had a lien upon the article in its crude state ; and this inchoate right, a court of chancery would have protected, if an attempt had been made to divert the cotton from its proper destination. By the agreement of the parties, the cotton was to be ginned and picked, ready for market, and until this was done, the article was not placed in that condition in which it was to be placed, when the title of the trustee was to be complete; or, to speak with more precision, when the lien became perfect. As it was to be the firs}; cotton gathered, which was to be ginned and baled for the security of the debt, upon a plantation of the size this is admitted to have been, this would happen early in the season, as in fact it did occur, early in November, if not sooner. But the debtor had until the first of January to pay the debt, and as until then there could be no default, the trustee had a lien merely, upon the cotton as ginned and baled, until that period arrived.
But in addition, we think it does appear with reasonable certainty, that the ninety-one bales, with the exception of the unginned cotton, gathered previous to them, were of the
The obscurity in the testimony arises from the expression, that of the hundred thousand pounds first gathered, thirty-five or thirty-six thousand pounds remained yet to be ginned. But it is also clear, that the remainder of this hundred thousand pounds had been ginned and baled, so that the two parcels must have constituted all the cotton gathered at the time of the levy. The result of the examination is, that the judgment heretofore pronounced is correct.