90 So. 310 | Ala. | 1921
The action is by a mortgagee of cotton against a subsequent purchaser, for damages for the destruction of plaintiff's mortgage lien.
The mortgage in question was executed to plaintiff by one Kelly on April 15, 1915, and covered all of the cotton and other crops raised during the current year, and every succeeding year until the mortgage was satisfied, on the mortgagor's own place, or on any place rented by him. The cotton here involved was raised by the mortgagor during the year 1920, on a place rented by him from one Jackson. It is the contention of the defendants — appellants here — that when said mortgage was executed, in April 1915, the mortgagor had no such interest in the land upon which this cotton was grown in 1920 as could give potential existence to such cotton, and thereby render it subject to the previous mortgage conveyance. The general principle is thoroughly well settled that, while the subject-matter of a chattel conveyance need not have identity, nor separate existence, "yet it must at least be the product, or growth, or increase of property, *479
which has at the time a corporal existence, and in which the mortgagor has a present interest, not a mere belief, hope or expectation, that he will in future acquire such an interest." Paden v. Bellenger,
"It is necessary, however, for the creation of a specific lien on such crops — such as will prevail against third persons who * * * acquire a specific interest therein — that they must be the contemplated product of land in which the mortgagor has a definite present interest, as distinguished from a mere possible or expectant future interest."
The undisputed evidence in this case shows that the mortgagor, Kelly, originally rented the land in question in the early part of 1915 for that year only, and that for each succeeding year down to the present he made a new and independent rental contract, with increases in the rental price after the first year. Taking that phase and theory of the evidence which is most favorable to the plaintiff, the most that can be said of the contract made in 1915 is that the landlord agreed to rent the land to the tenant for succeeding years if the tenant should desire it, and if they could agree upon the terms, in common parlance, as the landlord himself expressed it, the tenant was to have the refusal of the land on the landlord's terms. Such a contract falls far short of creating a present interest in the land covering the period of intended production. It is a mere option on the part of the tenant to bid for the land before it is offered to another. The mere expectation of the tenant that he might choose to rent the land in the year 1920, if it then suited his convenience and inclination to do so, was not sufficient. Moreover, the exercise of that choice was subject to the contingency of his future agreement with the landlord upon such terms of rental as the latter might then see fit to impose.
It is clear, therefore, that the cotton actually raised on the land in 1920, under the new and different contract made for that year, had no potential existence as the property of the mortgagor in 1915, or at any time prior to the making of the later lease. To hold otherwise would, we think, be a plain violation of principle, without any reason in justification.
The cases cited in brief for plaintiff are not opposed to this conclusion.
In Littleton v. Abernathy,
In J. H. Anders Co. v. Rice Bros.,
The case of Hurst v. Bell,
Upon the considerations above stated, we hold that the plaintiff has showed no right to recover, and that the trial judge should have instructed the jury peremptorily for the defendants, and that the refusal to do so, as requested by them, was error which must work a reversal of the judgment.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur. *480