Wilkinson v. Ketler

69 Ala. 435 | Ala. | 1881

STONE, J.

We have settled in this State, and have no wish to depart from it, that a mortgage may be made on a growing crop, and that after the crop matures and is gathered, there is a legal title in the mortgagee, which will support an action for the recovery of chattels in specie — our statutory action, of detinue. But .a mortgage on a crop, to be afterwards planted and grown, stands in -a different category. Such conveyance, at most, creates only an equitable lien; and, until the sale is perfected by a delivery of the product, no legal title exists in the mortgagee, and he can maintain no action at law for its recovery. In such condition, the legal title remains in the mortgagor. Rees v. Coats, 65 Ala. 256; Booker v. Jones, 55 Ala. 266.

The .testimony in the present case tends to show that the crop was planted before, or by April 1st, 1875. The mortgage to Wilkinson bears date April 10th. There is no testimony on the subject whether, at that time, the crop had become visible above the ground, or, indeed, whether the seed had germinated. When must a planted crop be treated as a growing crop ? If we were to enter upon the- inquiry, what time is necessary for the germination of planted seed, we should' encounter difficulties the shrewdest sagacity can not foreknow. Attending conditions enter materially into this inquiry. The many species of seeds employed in agriculture, have different periods for germination. The seasons — heat and moisture, or their absence — are factors in the solution of this problem. We think the only reasonable solution is, to hold that the crop must be treated as growing, from the time the seed is deposited in the ground. At that time it loses its qualities as a chattel, becomes part of the freehold, and passes with a sale of it. We thus relieve the question of all con jecture or judgment, as to the time when the planted seed takes on the incipient stage of vegetable life— when it becomes a growing crop. In other words, when it begins to grow. — 4 Rent Com. 468; 3 Washb. Real Property, 338-9.

When this case was before in this-court — 59 Ala. 306 — we held that from March 18, 1875, to February 9, 1877, the landlord had no statutory lien for advances made to the tenant. It was during this interval that Cook executed the mortgage to Wilkinson, upon -which the plaintiff relies for a recovery. It follows that Mrs. Ketler can assert no claim for advances made after March 18, based on mere statutory lien. The contract of letting, by which Cook .became her tenant, was oral, and antedated the mortgage to Wilkinson. In her testimony she employs these expressions, speaking of her contract with Cook: “ Said crop was placed in my possession by a voluntary act of March Cook, according to contract before the crop was planted. .... ILe, March Cook, was to have forty-seven acres, more or less, known by said March Cook, portion of land was to be mine to control, and sell and pay myself for all advances or indebtedness whatsoever. . . . Said supplies were sold to March Cook, and to be paid for when I sold the crop on his portion of land, or the land he was to cultivate for himself. . . . The entire crop of March Cook was turned over to me by the voluntary act of said Cook, unasked for by me, that being the contract-before planting of said crop.”

There is a seeming inconsistency in Mrs. Ketler’s testimony. She says the entire crop was turned over to her by the voluntary act of March Cook, her tenant; yet she proves that March Cook died before the crop was gathered, or harvested.

Under Mrs. Ketler’s testimony, copied above, it is contended that the-crop of cotton and corn were to be her property to sell, and out of the proceeds, to pay herself for advances, and all other indebtedness. From this, the conclusion is claimed, that Cook, the tenant, had no mortgageable interest in the crop, save of such part as should remain, after paying Mrs. Ketler in full. There being no surplus, it is contended that Wilkinson can take nothing by his suit. Giving to Mrs. Ketler’s testimony itg fullest effect, we do not think it amounts to more than a lien, or parol mortgage. It did not clothe her with a title to the crop, which we have seen was not then planted. — Rees v. Coats, supra. In Butterfield v. Baker, 5 Pick. 522, there was a lease of a farm by indenture, with a provision, “that for the payment of the rent quarterly, all the produce of the farm, whether standing and growing, or harvested and collected, if deposited upon the estate, should be holden, and be at the disposal of the lessor, in the same manner as if she were in the actual occupation of the farm; and that she should be authorized at all times to enter into the premises and take therefrom, for the payment of any portion of the rent that might be in arrear, any ripe crops standing and growing on the premises, or gathered and deposited on the same, she accounting to the lessee for all proceeds of the produce so taken, at a fair market price, towards the payment of the rent.” The tenant, having in his possession certain corn raised on the premises, it was attached as his property, at the suit of a creditor. There was rent due on the premises, and the question was, whether the corn was subject to attachment as the property of the tenant. It was ruled that the attachment lien was paramount to the claim of' the landlord. To the same effect are Munsell v. Carew 2 Cush. 50, and Lewis v. Lyman, 22 Pick. 437. And the principle of these cases is made a part of the text of Jones on Chattel Mortgages, § 143. "We think this case falls short of the principle declared in Jones, on Chat. Mort. § 141. — Booker v. Jones, 55 Ala. 266.

In what we have said above, we refer to the title to Cook’s, crop, which his mortgage conveyed to Wilkinson, and to Mrs. Ketler’s claim on the same crop. We make no reference to-Freeman’s crop, which the testimony tends to show was delivered to Mrs. Ketler. Wilkinson fails to show any right to that.

We do not think notice to Wilkinson that Cook was tenant on lands rented of Mrs. Ketler, as the law then stood, was constructive notice to him that she had made, or would make advances to him. The law then gave her no lien for such advances, and it could only exist by contract. Wilkinson can not be charged with a knowledge of the existence of such lien or parol mortgage, unless the jury are convinced he was informed, or had knowledge of it. The law is different now.— Wilson v. Beard, at present term.

Each of the charges, from 1 to 6 inclusive, except the one numbered 2, is opposed to the views above expressed. Charge No. 1 asked by defendant should have been given as-asked; but if part of the cotton in the bale had been Freeman’s, and had been turned over by him to Mrs. Ketler in payment, then it would have been proper to instruct the jury on that phase of the case. — Smith v. Rice, 56 Ala. 417.

Reversed and remanded.