Opinion
7 Div. 762.
November 10, 1927.
Appeal from Circuit Court, Clay County; E. S. Lyman, Judge.
Jas. W. Strother, of Dadeville, and Pruet Glass, of Ashland, for appellants.
It was error to permit defendants to show by Pitts that he told the bank to apply the money on the paper Fuller had transferred to it. Pace v. State, 162 Ala. 56, 50 So. 353; N.C. St. L. v. Moore, 148 Ala. 67, 41 So. 984. The question to plaintiff S. J. Gay, whether he knew the bank was transferee of the landlord's lien, was improperly allowed. Henderson v. State, 109 Ala. 40, 19 So. 733; Whaley v. Bright, 189 Ala. 137, 66 So. 644.
Walter S. Smith, of Lineville, for appellees.
Brief did not reach the Reporter.
The contest in this cause revolved around the second count in appellants' complaint, in which they claimed damages for the alleged conversion by defendants of the proceeds of one bale of cotton on which appellants claimed a mortgage lien. Plaintiffs assumed by this complaint the burden of proving that they had a property right in the cotton, either general or special — in this case the right of a mortgagee — and the possession or the right to immediate possession. 12 Mich. Dig. sub. cap. "Trover and Conversion," § 14. Defendants, appellees, claimed that the money, the proceeds of the sale of the cotton, had been applied in satisfaction of the lien of the grower's landlord for rent or advances, a lien superior to that of plaintiffs' mortgage, if any. As indicated, the cotton in question had been grown by a tenant, one Pitts, on land rented (from one Fuller). Defendants claimed that mortgage had been executed before the tenant had acquired any interest in the land, and hence that mortgage was ineffectual, under section 9008 of the Code, to vest title in plaintiffs. Windham v. Stephenson, 156 Ala. 341, 47 So. 280, 19 L.R.A. (N.S.) 910, 130 Am. St. Rep. 102. As to that, the testimony was in conflict. Further, defendants claimed that the money they gave for the cotton went to satisfy in part a claim of the Farmers' Merchants' Bank as transferee of an indebtedness in a much larger sum due from the tenant to one Graben for the price of two mules for which the landlord stood security. Plaintiffs contended that the claims on account of the mules had been transferred to the bank after the money had been paid to it for the credit of defendants and as an afterthought to avoid liability to plaintiffs. As to that also, the evidence was in conflict.
The evidence for plaintiffs tended to show that the mortgage from Pitts to them was given after Pitts had moved to Randolph county in January, 1921. If so, then the mortgage under which plaintiffs claimed was, as between the parties, a valid incumbrance, under section 9008 of the Code, to which, in that event, the decision in Windham v. Stephenson, supra, had no derogatory application, for the cotton was raised by the tenant on the place in Randolph county. Nevertheless charges 1, 2, 3, and B were refused to plaintiffs without error, for the reason that, if the price of the cotton went to relieve the landlord of liability, pro tanto, on account of the purchase price of the mules, they had no cause of complaint even though his previous consent had not been given, nor would plaintiffs be heard to complain in his stead. And for the like reason the tenant had a right to apply the price of the cotton in discharge of the lien for the price of the mules, and charge 22 was given on defendants' request without error. The landlord's claims for rent and advances were secured by the same lien, section 8799 of the Code, and his assignee had all the rights and remedies of the landlord. Section 8802, Code. Plaintiffs had no just ground of complaint so long as the price of the cotton went in discharge of a superior lien.
The rule of law declared in Windham v. Stephenson, supra, in connection with the reasons heretofore stated in justification of the court's action as to other charges will suffice to show that charge 13 was not erroneously given for defendants.
Charge 18 was properly given on the request of defendants. The objection that it erroneously singled out testimony for plaintiffs cannot be maintained. This court has frequently approved charges of the sort which referred to named witnesses. McClellan v. State, 117 Ala. 140, 23 So. 653, and case there cited; Alabama Steel Co. v. Griffin, 149 Ala. 439, 42 So. 1034.
We are in agreement with appellants that the question put to Dr. Gay, one of the plaintiffs, and allowed by the court, "You knew the Farmers' Merchants' Bank was transferee of the landlord's lien, did you not?" was wholly immaterial and irrelevant. It was a matter of no consequence whether or what the witness knew as to that. The facts as to the lien controlled without regard to what the witness knew, and, in view of our stated conclusion, the form of the question was immaterial. And, in any event as to the materiality of the question, the form of the question was not otherwise objectionable for the reason that it was asked on cross-examination. We cannot therefore see our way to a reversal on account of the allowance of this question.
There was no error in allowing defendants to show by the tenant, Pitts, that he directed his father, as his agent, to apply the proceeds of the bale of cotton in part discharge of the landlord's lien for advances (the mules) by paying them to the bank, assignee of the lien. This testimony went to show the authority of the agent of the tenant to make an application in discharge in part of a lien superior to plaintiffs' mortgage, and hence, in connection with other evidence showing actual payment, that the payment infringed on no prior right of plaintiffs.
We think there is no necessity for a further discussion of the assignments of error. It was clearly within the province of the jury to render a verdict in favor of defendants, though the evidence was in dispute, and we have not been able to find reversible error in the record, though some of it relates to immaterial matters.
The judgment will be affirmed.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.