Stern v. Simpson

62 Ala. 194 | Ala. | 1878

BRICKELL, C. J.

The mortgage to the appellant, so far as it purported to convey the crops of the mortgagor, not planted, but to be subsequently planted, may have been a mere executory contract. Yet, the crops having been grown,' gathered, and delivered to the mortgagee in execution of the contract, he was thereby clothed with a legal title to them, as fully as if they had been in existence, and the subject of grant, when the mortgage was executed. — Bryan v. Smith, 22 Ala. 534; Abraham v. Carter, 53 Ala. 8. The title thus acquired will prevail over that of the appellee, dependent on a subsequent mortgage. But the argument is, that the subsequent mortgage to the appellee, is a crop lien, under the statutes, and has precedence over all prior mortgages, and all prior liens, except that of the landlord for the rent of the premises on which the crop is grown. Such is, doubtless, the operation of the statute, as has been repeatedly declared by judicial decision. The statute does not, however, change the right of property, or the right of possession — these remain as they may be, when the lien is created. . It confers on the party making advances to enable another to make the crop, when the facts concur expressed in the statute, and these facts are expressed in a written instrument which is duly recorded, a right to charge the crop with the payment of such advances, in priority of all other rights or liens, than that of the landlord for rent. The lien is to be enforced through the medium of an attachment against the crop, and is of the nature and character of the lien of an execution. Until the attachment is issued and levied, the right of property or of possession is not changed — and then it is changed, and to the officer levying the attachment, not to the party in whose favor it issues, the possession is transferred, and a special property so far as is necessary to preserve the lien and to protect the possession. The general property, even then, remains in the party raising the crop, unless he has transferred it, and it may be freely transferred, the transfer being subordinate to the lien. The lien holder can not take the crop from the possession of the party raising it, or from the possession of another, to whom it has been transferred.

A defendant in detinue may plead in justification, that the goods were pawned to him for a debt which is unpaid, or that he has a lien thereon. This is true of liens at common law, of which possession was an indispensable element, which created a special property, and which were lost if the possession was parted with voluntarily. The lien was indeed a right to retain possession, until a debt, or demand, or charge was satisfied, as in the case of an inn-keeper, or a carrier, or artificer, or factor, or pawnee. The lien on a crop for ,advances, created by the statute, is like the lien of a landlord for rent, or of a judgment, or execution creditor, or of an attachment. It is a mere charge, or incumbrance, when there is neither jus in re, nor jus ad rem, nor possession or a right to possession. — Peck v. Jenness, 7 How. 612; Thompson v. Spinks, 12 Ala. 155; Dulany v. Dickerson, Ib. 601; Hussey v. Peebles, 53 Ala. 432; Treadway v. Treadway, 56 Ala. 390. Not conferring 9. right of property, or a right of possession, the claimant of it can not support trespass, trover, or detinue for an injury to, or for the conversion, or for the detention of the crop. The statute prescribes the remedy he must pursue, an attachment against and to be levied on the crop.

When the cotton was delivered to the appellant by the mortgagor, she was, as we have said, clothed with the legal title, in addition to the actual possession. Beeves may have had a lien, to which, by force of the statute, the legal title was subordinate. But the lien did not authorize him to take possession of the cotton, or to detain it from the appellant. It could not, therefore, be pleaded in justification of the wrongful taking and detention — the remedy for its enforcement prescribed by the statute ought to have been pursued. A judgment, or execution creditor, having a lien on property, could as well be justified in taking it from the possession of the debtor, or of one to whom the debtor had transferred it, as could Beeves be justified .for his seizure and detention of the cotton. The court should, therefore, have instructed the jury as requested — that if they believed the evidence, the appellant was entitled to recover. It is not necessary to consider the other assignments of error.

Beversed and remanded.