Opinion
6 Div. 969.
November 15, 1923.
Appeal from Circuit Court, Lamar County; T. L. Sowell, Judge.
J. C. Milner, of Vernon, and Hill, Hill, Whiting Thomas, of Montgomery, for appellant.
A crop mortgagee, suing a purchaser of crops, has the burden of proving the mortgagor's interest at the time of the execution of the mortgage in the land on which the crops covered by the mortgage were grown, and that the crops sold to the defendant purchaser were raised on such land. Johnson v. Coosa Mfg. Co., 16 Ala. App, 649. 81 So. 141. When a person's signature to a written instrument is procured by false representations as to its contents, of which he is ignorant, this is fraud in the execution, for which the instrument may be avoided and set aside. Pacific Guano Co. v. Anglin, 82 Ala. 492, 1 So. 852. The judgment against the Colemans in suits to which the defendant appellant was not a party is not binding upon the defendant appellant, and should not have been allowed to be introduced in evidence against him.
Norman Gunn, of Jasper, and Kelley Sims and Guy Redden, all of Vernon, for appellee.
Coleman was a tenant holding over and in possession when the note or mortgage was executed, which possession sufficed for him to make a valid mortgage on the crop to be grown. Shotts v. Cooper, 199 Ala. 284, 74 So. 353; Wolffe v. Wolffe, 69 Ala. 549, 44 Am. Rep. 526; Robinson v. Holt, 90 Ala. 115, 7 So. 441; Linn v. McLean, 85 Ala. 250, 4 So. 777. There was no plea setting up fraud, and evidence of misrepresentations by plaintiff was inadmissible.
It is insisted that the mortgages on the crops for 1915 were invalid, as the mortgagors had made no rental contract, had no interest in the land at the time, and that therefore the crops had no potential existence.
The rule is recognized that to create a specific lien on crops, such as will prevail against third persons who subsequently acquire a specific interest therein, it must appear that such crops were the contemplated product of the land to which the mortgagor had at the time a definite present interest, as distinguished from a mere possible or expectant future interest. Gilliland Merc. Co. v. Pond Bros., 189 Ala. 542, 66 So. 480; Littleton v. Abernathy, 195 Ala. 65, 70 So. 282; Windham v. Stephenson, 156 Ala. 341, 47 So. 280, 19 L.R.A. (N.S.) 910, 130 Am. St. Rep. 102.
However, it appears that J. W. Coleman had rented the land for the previous year, remained in possession, and was "holding over" after the expiration of his lease (Shotts v. Cooper, 199 Ala. 284, 74 So. 353), continued thereon, and made the crop under an agreement made about a month thereafter, and the court is of the opinion under these circumstances he had such an interest as to constitute the mortgage on the crops a valid one. It may be that as to L. C. Coleman the same reasoning would not apply, the facts not being the same; but there was no separation of the interests of the two, and no occasion for a definite decision thereon. Reversible error cannot therefore be predicated upon the action of the court in giving the affirmative charge for the plaintiff upon this theory of the case.
The defendant offered proof tending to show that the instruments relied upon by the plaintiff were secured as a result of false and fraudulent representations made by plaintiffs' agents to the mortgagors — such as a misrepresentation of the contents of the instruments. We are of the opinion this evidence should have been admitted. Pac. Guano Co. v. Anglin, 82 Ala. 492, 1 So. 852; Beck, etc., Co. v. Houppert, 104 Ala. 503, 16 So. 522, 53 Am. St. Rep. 77.
Counsel for appellee make the point, however, that this evidence was inadmissible for the reason there was no special plea setting up the fraud. The judgment rendered was evidently based upon the trover counts, and the instruments upon which the plaintiff relied were collaterally involved. It is the rule of this state that, with the exception of a release, the plea of not guilty in trover puts in issue every matter pleadable in bar. Such evidence was therefore admissible without a special plea. Ryan v. Young, 147 Ala. 660, 41 So. 954; Am. Bottling Co. v. Finney, 203 Ala. 92, 82 So. 106; 12 R. C. L. 418.
For the error indicated, the judgment will be reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and SAYRE, GARDNER, and MILLER, JJ., concur.