64 Ala. 504 | Ala. | 1879
Eorniss was planting, and preparing to plant a crop on two adjoining plantations, known as the “Tom Beck plantations.” Eor rent of part of the land, he had promised to pay four bales of cotton to Mrs. Eorniss and an hundred and sixty dollars to Marshall & Conley. He had also purchased twelve mules of Shields, and had agreed to pay him for them twenty-five bales of the cotton to be grown on
By the terms of the purchase, Thigpen was to pay Forniss three thousand dollars for his interest; five hundred dollars in cash, and twenty-five hundred dollars to be paid first January next afterwards. He paid the five hundred dollars, and on the 9th April, executed a mortgage to Forniss, to secure the payment of the twenty-five hundred dollars. This mortgage, and the contract it is made to secure, show on their face that they are subordinate to all the liabilities stated above, The terms of this mortgage will be explained hereafter. This mortgage was duly recorded in the proper office.
In the process of making the crop, Thigpen obtained ad
There is, in the bill and other pleadings, an entire absence of averment of the terms, or of any terms, on which, first Forniss, and then Thigpen, agreed to advance, and did advance, provisions and supplies to the laborers, or how those advances were to be repaid. No reference, in fact, is made to advances; nor is it shown in the bill that any person, other than Thigpen, had or has any interest in the crops to be grown, or that any division of the crops was to talie place. The bill charges that said Thigpen, “in order to secure the payment of the said sum of twenty-five hundred dollars, executed a deed of mortgage to the said John J. Forniss, on * * fifteen head of mules, farming implements, one lot of blacksmith tools, and all the cotton, corn, fodder, and everything else to be grown and raised by said Thigpen during the year 1870, on the said two plantations.” The bill further charges, “ That in the year 1870, a large amount of cotton, corn andfodder, was raised by said Thigpen on said two pian
While the testimony shows that both Forniss and Thigpen advanced supplies to the freedmen, of which they kept accounts, and that the accounts thus kept by Forniss were turned over to Thigpen in the .trade, it no where shows that any agreement was made, securing payment for those supplies by a lien on the freedmen’s shares of the crop. Thigpen is the only witness who speaks of a contract between Forniss and the freedmen, as to supplies; and he says nothing on the subject of their payment, or security for their payment. All he says on the subject is as follows : “ John J. Forniss told me he had a contract signed by and between himself and the laborers on the ‘ Tom Beck places,’ but never delivered that contract to me, nor have I ever seen it; although Forniss promised and agreed to turn the same over to me. But he delivered to me, in place thereof, a contract purporting to be between himself and the laborers on the ‘ Tom Beck places,’ but the same was only signed by John J. Forniss, and not by any of the laborers on said ‘ Tom Beck places.’ In this contract,, turned over to me by Forniss, as being the one between himself and the laborers on the ‘ Tom Beck places,’ there was a stipulation that the crops on the said places were to be bound for the advances made to John J. Forniss by W. B. Shields. . . . The accounts due by laborers on the ‘ Tom Beck places ’ to John J. Forniss, and which he, the said Forniss, turned over to me after I bought him out, were delivered by me to K. W. Arrington, as agent of Milhous & Shields; and I also turned over, to K. W. Arrington, as agent for Milhous & Shields, the accounts due to myself by laborers on the ‘ Tom Beck places,’ as part payment of my indebtedness to said Milhous & Shields, for advances and supplies made by them to me, for the purpose of running the said ‘ Tom Beck places.’ ” These transactions took place long before the enactment of the statute “ to regulate the lien of landlords for rent and advances,” &c., approved February 9, 1877 (Pamph. Acts, 74), which consti
The foregoing contains every thing this record discloses, bearing on the vital question in this cause. True, in his examination as a witness before the register, in taking the first account, Shields testified that, under the contract by which advances were made to the laborers, “ their share of the crops was liable for the supplies. I do not recollect exactly the reading of the contract, and there was no objection on the part of the laborers to let their share of the crop go in that way.” Objection and exception were taken to the entire examination of this witness, which were sustained by the court, and the evidence excluded. This leaves the record entirely silent as to the terms on which the advances were received by the laborers, or were to be paid for. Neither the contract of the parties, as shown in this record, nor the relation they sustained to each other, as the law then stood, gave to Thigpen any right to, interest in, or lien on the laborers’ shares of the crops, on account of those advances, or brought the accounts within the description of the property conveyed in Thigpen’s mortgage to Eorniss. They were no part of the “ cotton, corn, fodder, or any thing else raised or grown by Thigpen that year.” We think, on the evidence before the chancellor, he erred in decreeing to complainants any part of the sums collected from the laborers, or their shares of the crops, for advances made to them.
The chancellor also erred in charging Shields, or Milhous & Shields, with the value of the mare which Thigpen disposed of. That mare is embraced in the mortgage to Milhous & Shields; but is not conveyed in the mortgage to Eorniss. There is no evidence that Milhous or Shields ever had possession of this mare, or that she had not been made way with by7 Thigpen, before Milhous & Shields were authorized to take possession under their mortgage. There is no evidence that Shields or Milhous authorized or connived at the disposition made of her by Thigpen, or that they were guilty of bad faith or negligence in not recovering her or her value. Their duty to Eorniss, subsequent mortgagee of a part of the property on wdiich they held a first mortgage, required of them good faith in the enforcement of their mortgage; and if, by fraud, or gross negligence, they permitted a part of the mortgaged property to be destroyed, lost, or removed beyond their reach, and thus left a smaller residuum to be applied to the junior mortgage, equity and good conscience require they should make good such loss. — 2 Jones on Mortgages, § 1628, The record before us fails to fix on Milhous- or Shields such
The farming implements and blacksmith tools are not men^ tioned in the mortgages to Shields and Milhous & Shields. They are embraced in the mortgage to Forniss. Kimbrough & Purnell are entitled to these, unless they were purchased with means advanced by Milhous & Shields under the crop-lien. We are not able to detect any other errors in the record.
Reversed and remanded;