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1 (100 So.)

no title which will defeat action of detinue or GAY & BRUCE v. W. B. SMITH & SONS. trover by mortgagee. (7 Div. 460.)

9. Chattel mortgages Cwm 229(3)-Evidence held (Supreme Court of Alabama. May 29, 1924.)

admissible to show good title of defendant

purchaser from mortgagor. d. Chattel mortgages em 150(1)-Must be re. In mortgagee's action for conversion of cotcorded in county of mortgagor's residence to ton sold by tenant mortgagor, evidence that constitute constructive notice in another landlord was liable on tenant's note given in county.

payment formules, that proceeds of cotton Under Code 1907, & 3376, mortgage must was to be applied to rents first and then to have been recorded in county of mortgagor's payment of note, held admissible to show lawresidence to constitute constructive notice in ful sale for benefit of landlord, giving good tianother county.

tle to purchaser. 2. Chattel mortgages em 229(3)—Burden of 10. Chattel mortgages 229(1)- Instruction showing recordation in county of mortgagor's as to recording of mortgage and sale by mort. residence on plaintiff mortgagee.

gagor without landlord's consent held impropBurden held on mortgagee of cotton suing erly denied. for conversion to show that mortgage was re. In mortgagee's action for trover and concorded in county of mortgagor's residence, so version of cotton sold by mortgagor, where as to constitute constructive notice to purchas- evidence was in conflict as to whether mortgage ers in another county.

was recorded in county of mortgagor's resi3. Trial @w253(3)-Instructions ignoring issue dence, instruction that if mortgage was executas to proper recordation of mortgage of it was recorded, and if the cotton was sold

ed after mortgagor moved into county in which property involved, held properly refused.

without consent of mortgagor's landlord, then Instructions in mortgagee's action for con. verdict should be for plaintiff, held improperly version of cotton, ignoring issue as to whether

refused.
plaintiff's mortgage was recorded in county of
mortgagor's residence, so as to constitute no-
tice in another county, held properly refused.

Appeal from Circuit Court, Clay County;

George F. Smoot, Judge.
4. Chattel mortgages on 159—Mortgagee of
crop has legal title and is entitled to pos-

Action in trover and detinue by S. J. Gay session after crop gathered.

and J. S. Bruce, doing business as Gay & Mortgagee of crop grown by tenant has Bruce, against W. B. Smith and others, dolegal title and is entitled to possession accord- ing business as W. B. Smith & Sons. Judging to terms of mortgage after crop is gath- ment for defendants, and plaintiffs appeal. ered, when mortgage is given after January 18t Transferred from Court of Appeals under of the year in which the crop is grown.

Acts 1911, p. 449, 8 6. Reversed and re5. Landlord and tenant 328(2)-Tenant may

manded. not, without landlord's consent, remove crop These charges were refused to plaintiffs: subject to lien or defeat landlord's rights by mortgage.

"1. The court charges the jury that if you Tenant may not, without landlord's con

are reasonably satisfied from the evidence that sent, remove crop on which landlord has lien the mortgage .was executed by H. C. Pitts to from premises por otherwise dispose of same, plaintiff after Pitts moved into Randolph counand cannot by mortgage pass any greater right ty, and that the bale of cotton raised by Pitts than he has as against the landlord.

and involved in this suit was sold without au

thority from the landlord, then your verdict 6. Landlord and tenant en 328(2)-Landlord will be for the plaintiff.”

and tenant may apply crop to satisfaction of "2. The court charges the jury that if you are landlord's lien to detriment of mortgagee. reasonably satisfied from the evidence that the

A landlord and tenant may in good faith landlord did not authorize H. C. Pitts, his tenapply crop to satisfaction of landlord's lien, in ant, to sell the bale of cotton, at or before a manner to cut off a mortgagee of a tenant; the time of the sale to the defendants, your the landlord's lien being paramount by statute. verdict should be for the plaintiffs." 7. Landlord and tenant 328 (3)-Consent to

"3. The court charges the jury that if you sale mere waiver of lien and to be valid are reasonably satisfied from the evidence, against mortgagee must be on landlord's ac. after having considered all of it, that Claudie count.

Fuller, the landlord, did not authorize the sale A landlord's mere consent to tenant's sale of the cotton to defendants, and you are further of crop is a mere waiver of his lien, and to sidered all of it, that the indebtedness of the

satisfied from the evidence, after having conrender the sale valid as against a mortgagee, plaintiffs' mortgage had not been paid at the lord's consent, but on his account and for the time of said purchase of said cotton, your rerpurpose of satisfying his lien.

dict should be in favor of the plaintiffs for the

damages which you find, from the evidence, 8. Chattel mortgages om 155 — Purchaser of plaintiffs sustained.” cotton with knowledge of mortgage takes no “B. The court charges the jury that if you title which will defeat action by mortgagee. are reasonably satisfied from the evidence that

Purchaser of cotton from tenant, with ac- Claudie Fuller did not authorize H. C, Pitts tual or constructive notice of mortgage, takes) to sell the bale of cotton involved in this suit

Prm For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

1

then your verdict will be for the plaintiff for, on l'ands then rented by a tenant, passes the the full amount for which the bale of cotton legal title to the mortgagee. As against the was sold less the amount paid the landlord for tenant, he has the right of possession acrents and advances."

cording to the terms of the mortgage after E. P. Gay, of Ashland, and 0. B. Corne- the crop is gathered. lius, of Montgomery, for appellants.

[5] The landlord's lien for rent and adWalter S. Smith, of Lineville, for appellees. vances is mad paramount by statute. It is

a law-created lien accompanied with restricBOULDIN, J. This is an action of trover tions upon the possession and control of the for the conversion of a bale of cotton,

tenant. The tenant may not, without the brought by a mortgagee against a purchaser landlord's consent, remove the crop from the from the mortgagor. A count in detinue was premises, nor otherwise dispose of same, added, but not litigated. One issue in the without subjecting nis crops to attachment. court below was the question of constructive He cannot by his mortgage pass any greater notice to the purchaser by the record of the right than he has as against the landlord. mortgage. The mortgage was recorded in [6] In the very recent case of Gillespie v. Randolph county. The cotton was grown in Bartlett & Byers, 100 South. 858, on conthat county, hauled over into Clay county, sideration by the full court, the majority and there sold the same day. There was con- held that the tenant may turn over to his flict in the evidence as to whether the mort- landlord so much of the crop as necessary to gagor resided in Clay or Randolph at the satisfy the lien for rent and advances, and time the mortgage was given and recorded.

vest the landlord with the title so as to de 11) To operate as constructive notice in feat an action of detinue by the tenant's another county, the mortgage must have been mortgagee. The effect is to hold that the recorded in the county of the mortgagor's landlord and tenant, by virtue of our landresidence.' Code 1907, $ 3376.

lord and tenant statutes, may apply the crop [2] Under the evidence this was an issue in good faith to the satisfaction of the lien, for the jury, and the burden of proof was on

may do for themselves what the law would plaintiffs,

do for them, and so cut off the mortgage by [3] Charges Nos. 2, 3, and B, refused the tenant. We reaffirm that ruling. Any to plaintiffs, ignored this feature of the case, other construction would render the tenant and were properly refused.

powerless to pay his landlord out of the The chief controversy arises as to the right crop, and subject his entire crop to the diof the mortgagor to sell the bale of cotton minishing process of court proceedings for and pass a good title as against the mort- that purpose. In Belser v. Youngblood, 103 gage.

Ala, 545, 15 South. 863, it was held in trover The cotton was grown and mortgaged by that the tenant need not surrender to the a tenant. His landlord had a lien for one- landlord the actual possession of the crop, fourth as rents, and a lien for advances by but if a portion is selected and set apart for becoming surety for the tenant upon a note payment of rents and advances, and the tengiven for a pair of mules to make the crop. ant by the direction of the landlord markets

Homer Pitts, the tenant, as a witness for the same, and pays over the proceeds to the the defendants, testified that the landlord landlord, the purchaser takes a good title corsented for him to sell the cotton, pay the against the tenant's mortgagee. The landrent, and apply the balance on the mule note lord is considered in constructive possession when due; that the landlord was present in such case, and the purchaser succeeds to and helped load the cotton on the wagon his title. See, also, Mutual Warehouse Co. when it was bauled off and sold. Claudie v, Hamilton, 171 Ala. 82, 55 South. 116; Fuller, the landlord, testified that he gave Keith v. Ham, 89 Ala. 590, 7 South. 234. no such consent, did not help load the cot

[7] The charge before us declares that the ton, was not present, and had no knowledge purchaser from the tenant takes a good title that it was being sold at the time.

Both

as against the mortgage if the landlord "conagree that the rent was paid.

sented” to the sale. Mere consent of the The trial court gave the following charge landlord to a sale by the tenant, without for defendants;

more, is a mere waiver of the landlord's lien. “If the jury is reasonably satisfied from the It is simply released, and the tenant proevidence in this case that Claudie Fuller ever ceeds in his own right to sell it. Foxworth V. by words or acts consented to Homer Pitts Brown Bros., 120 Ala. 59, 24 South. 1. selling said bale of cotton, you must find a

[8] Such a sale cannot affect the rights of verdict in favor of the defendants, W. B. Smith the mortgagee.

A purchaser, with actual & Sons."

or constructive notice of the mortgage, takes This and other rulings bring under review no title which will defeat an action of deti. the legal rights and duties of landlord, ten nue or trover by the mortgagee. ant, and mortgagee of crops.

The charge was entirely too broad. The [4] A mortgage on a crop given after Jan-sale must not only have been made by the uary 1st of the year in which it is grown consent of the landlord, but on bis account,

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(100 So.) and for the purpose of satisfying the lien. (after marriage to habitual drunkenness.

The evidence was in such conflict, and all the defendant answered, and denied that he
the circumstances were such, that it became became addicted after their marriage to
a question for the jury, whether the land- habitual drunkenness. The court on the
lord by word or act consented to the sale hearing on pleading and proof denied com-
in the sense of a mere waiver of his lien. plainant relief, dismissed her bill of com-
The giving of the above charge was error. plaint, and taxed her with the cost of the

[9] The evidence for defendants tending cause, The complainant appeals from this
to show the purchase of the mules, the note decree, and assigns it as error.
giren therefor, that the landlord was bound The complainant and defendant were mar-
thereon, that the balance of proceeds of this ried on November 18, 1919; they lived to-
bale of cotton, after payment of rents, vas gether about two years, and then separated.
to be held for payment on that note, was [1] Did the defendant become addicted to
properly received. This was pertinent to habitual drunkenness after their marriage?
show a lawful sale of the cotton for the ben- is the real question presented by the record;
efit of the landlord, giving a good title to and the burden of proof rests on the com-
the purchaser.

plainant. Moor V, Moor (Ala. Sup.) 99 [10] Plaintiffs' refused charge No. 1 should South. 316; section 3797, and section 3793, have been given.

subd. 6, Code 1907, as amended by Gen. Acts The judgment of the court below is re- 1911, p. 631, and as further amended by Gen, Tersed, and the cause remanded.

Acts 1919, pp. 839, 810. This court, in State Reversed and remanded.

V. Savage, 89 Ala, 8, 7 South. 7, 183, 7 L. R. All the Justices concur.

A. 426, defined habit and drunkenness. It

was approved in State v. Robinson, 111 Ala. SOMERVILLE, J., concurs in the result 482, 20 South. 30, and it was quoted recently only.

with approval in Moor v. Moor (Ala. Sup.) 99 South. 316, and we need not repeat it here.

[2] The complainant knew before her marHOWELL V. HOWELL. (8 Div, 631.) riage to the defendant that he drank OC

casionally to excess. She lived in the home (Supreme Court of Alabama. June 5, 1924.) of his father for two years prior to the mar1. Divorce w 109-Burden of proof that hus- riage, and he resided there a part of the band became habitual drunkard after mar- time. She was 30 years of age when they riage held to be on complainant.

married. The defendant from the evidence In view of Code 1907, § 3797, and section did not contract the fixed habit of frequently 3793, subd. 6, as amended by Gen. Acts 1911, getting drunk after their marriage. Before p. 631, and Gen. Acts 1919, p. 839, burden of and since their marriage, from some of the proof that husband became addicted after mar- evidence, he did occasionally drink to exriage to habitual drunkenness held to rest on complainant.

cess, but this evidence does not pronounce

him an habitual drunkard. He occasionally, 2. Divorce 22–Husband occasionally drink, not frequently, drank to excess; it was not ing to excess held not addicted to habitual habitual with him; sobriety was the rule, drunkenness.

and occasional drinking to excess was the exWhere husband's drinkipg to excess

ception in his life. He could not be deoccasional only, and not habitual with him, he was not a person who became addicted after clared under the evidence as a person who

was

became addicted after his marriage to commarriage to habitual drunkenness.

plainant to habitual drunkenness. To en3. Courts Om 104-Appellate court not re- title complainant to a divorce on that ground

quired to discuss correctness of conclusion the burden rested on her to make that proof; from weight of evidence,

The appellate court is not required under the court below held she failed to meet the the statute to show correctness of trial court's hurden placed on her, denied her that relief,

and dismissed her cause. We concur in his conclusion from weight of evidence.

conclusion, and affirm the decree. Moor v. Appeal from Circuit Court, Morgan Coun- Moor (Ala. Sup.) 99 South. 316, and authorty; Osceola Kyle, Judge.

ities supra. Bill for divorce by Saleta Howell against

[3] We will not discuss the testimony and J. M. Howell. From a decree denying re- show the correctness of this conclusion from lief, complainant appeals. Affirmed.

the weight of the evidence. The statute

does not require it. No good could come Tennis Tidwell, of Albany, for appellant. from it, and neither party could profit by it. Eyster & Eyster, of Albany, for appellee.

The decree of the court is free from error,

and is affirmed. MILLER, J. This is a bill in equity by

Affirmed. Saleta Howell against J. M. Howell, seeking a divorce from the bonds of matrimony on ANDERSON, C. J., and SAYRE and the ground said defendant became addicted |GARDNER, JJ., concur.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

That we,

terest of said Gresham in said timber to termiGRESHAM v. POGUE et al. (5 Div. 883.) nate. Witness this Nov. 28, 1921." (Supreme Court of Alabama. May 15, 1924. It is alleged that at the time of the exten

| Rebearing Denied June 19, 1924.) sion, respondent got possession of complain. Alteration of instruments am 17-Unauthorized

ants' copy of the contract, and that when alteration in timber grant held not to author

it was returned it had been altered by the ize cancellation of conveyance.

erasure of the word "oak”; that respondent That erasure of the word "oak” in a grant had his copy of the contract recorded after of timber rights was not made by grantors, or said extension agreement, and that the record authoritatively did not authorize trial court to omits the word "oak”; that respondent has cancel conveyance entirely and enjoin a removal cut other timber from the lands; that he of any timber, since the unauthorized altera- is erecting a saw mill upon the land for the tion did not divest title to oak timber originally purpose of cutting all timber on the lands; granted.

that there remains but little of the oak timAppeal from Circuit Court, Tallapoosa thereon, other than oak, of the value of $2,

ber on the tract, but that there is timber. County; S. L. Brewer, Judge.

000, the cutting of which would work irreBill in equity by Ella Pogue and another parable loss upon complainants, for the reaagainst W. L. Gresham. From the decree son that respondent is not financially able to respondent appeals. Corrected and affirmed. respond in damages. The bill alleges that complainants, on

The prayer seeks a temporary injunction; January 10, 1921, entered into a contract a cancellation of the contract in the event with respondent, in substance as follows:

it is found respondent has removed timber

other than oak to a value greater than that “The state of Alabama, Talla poosa county of the oak remaining; or, if it be found the Know all men by these presents: Miss Ella Pogue and A. L. Pogue, for and in contract was changed or altered without the consideration of two hundred ($200.00) dol- consent of complainants, that it be corrected lars to us in hand paid by W. L. Gresham, the and reformed, etc. receipt whereof we do hereby acknowledge, do By his answer respondent denied altering hereby give, grant, bargain, sell, enfeoff and the contract, and asserts that the change convey unto the said W. L. Gresham all of the therein was made by complainants with the oak timber located on the following described purpose of conveying all the timber upon the real estate, lying in Tallapoosa county, state lands in question. of Alabama, to wit: All oak timber on the lands known as the old John L. Pogue Place,

The trial court decreed that the original South and Southwest of the Veazy or Lockett contract had been altered, but that the alterbranch and back to the road known as the ation was not made by complainants; that Robinson Ferry road and to the old Veazy the contract of record be canceled; that, resettlement road, located in beat nine. Said spondent having cut other than oak timber Gresham is to have twelve months in which to the time extension agreement be canceled, remove said timber from these lands and is and all rights under the contract be divested to have the right of ingress and egress over all out of the respondent; and respondent is lands of the said Miss Ella Pogue and A. L. Pogue for the purpose of removing said timber,

permanently enjoined from exercising any and is to have the right to locate a mill on said right under the contract. lands, and any other rights that may be nec

From this decree the respondent prosecutes essary for the said Gresham to handle and this appeal. remove said timber. All timber hereby sold to said Gresham is to be of ten inches diameter at

Jas. W. Strother, of Dadeville, for appel. the stump, and the said Gresham is not to cut lant. any timber of lesser diameter, except for road- Geo. C. Douville and G. J. Sorrell, both ways or other necessary purpose in connection of Dadeville, for appellees. with the removing of the larger timber. AI timber not so cut by said Gresham within the twelve months from date is to revert to and to

ANDERSON, C. J. It is agreed that the become the property of Miss Ella Pogue and original contract conveyed only the oak tim. A. L. Pogue.”

ber upon the land, but the respondent con

tends that when the extension of time was Thereafter, the time limit was extended as granted on November 28th for removing the evidenced by this indorsement upon the orig- timber the word "oak" was removed or strickinal contract:

en from the conveyance by mutual consent, "For and in consideration of the sum of one

and so stricken the instrument would operate dollar to me in hand paid by W. L. Gresham, the to convey all timber upon the land instead receipt whereof is hereby acknowledged, I do of the "oak” only, as originally conveyed. hereby extend the time in which said Gresham The complainants contend that the word bas to cut and remove the timber herein de- "oak” was not stricken by them or by any scribed to the 10th day of January, 1924. At one else with their knowledge or consent and the expiration of said date, all rights and in that nothing was said about the other tim

For other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Inderes

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(100 So.) ber when the time extension agreement was 2. Evidence w222(3)-Admissions by claimsigned. We have carefully considered the ant by adverse possession tending to show evidence and are of the opinion that the possession not adverse held competent. freight of same, taking into consideration Where defendant claimed land by adverse the surrounding circumstances and details, possession, his admissions that he regarded supports the conclusion of the trial court it as part of his father's estate, though made that the erasure of the word "oak” was not of his possession, were competent to show his

after lapse of 10 or 20 years from inception made by the complainants and that the orig. possession was not hostile and adverse. inal was not so authoritatively changed as to convey any timber other than the "oak.” 3. Trial em 56-Excluding question, answer to The trial court, therefore, properly held that

which would have added nothing to defend

ant's case, not error. the complainants were entitled to relief,

Where evidence showed that father of but should have more properly ordered the claimant by adverse possession gave claimant reassertion of the word oak in the conveyance use of property as home, and hence it would and the record of same and enjoined the have added nothing to defendant's case to have respondent from removing any timber from sbown that his father never demanded rept, the land other than the oak instead of can- there was no error in excluding evidence to celing the conveyance entirely and enjoining that effect. a removal of any of the timber. The original 4. Witnesses w 159(4)-Question prima facio document was an executed conveyance of the objectionable as calling for statement by deoak timber and the unauthorized alteration, ceased person whose estate was interested. even if made by the grantee, did not divest In view of Code 1907, § 4007, question to the title originally granted by the instru- defendant as to whether his deceased father ment, and, though altered, it continued as

ever asked him to pay rent on land claimed a memorial of the conveyance and as evidence by adverse possession was prima facie objecto prove the existence of title in the grantee tionable as calling for statement by deceased as originally conveyed. Ala. State Land Co. person whose estate was interested in result. 5. Thompson, 104 Ala. 570, 16 South. 440, 5. Witnesses aww 159(4) - Testimony of con53 Am. St. Rep. 80. It appears that under

versation between defendant and deceased fa. the extension the respondent bad 10 months,

ther properly excluded. or, more accurately speaking, 9 months and

Testimony of claimant of land by adverse 28 days, within which to cut and remove the l his deceased father, relating to renting and col

possession as to transactions between him and oak timber, when the injunction was issued, lection and disposition of rents, held inadmisand the decree of the circuit court is corrected sible, under Code 1907, Š 4007, as calling for so as to correct conveyance and record as statement-by deceased person whose estate was above indicated and the injunction is modified interested in result. so as to exclude from the operation of same 6. Witnesses en 159(7)-Defendant could not the oak timber of the size limit as conveyed state deceased father gave him property by the original instrument and the respond claimed by adverse possession. ent is given 9 months and 28 days from the In view of Code 1907, § 4007, claimant of rendition of this judgment within which to land by adverse possession could not testify cut and remove said oak timber.

that his deceased father gave it to him, notThe decree of the circuit court is corrected withstanding evidence of adverse witness that and modified, as above indicated, and af- after father's death defendant said witness firmed,

could swear that father had given witness' wife Corrected and affirmed.

a place and also had given defendant land in

question. SOMERVILLE, THOMAS, and BOULDIN,

7. Ejectment 27-Instruction on estoppels in pais properly refused.

Estoppels in pais cannot affect title to land in law, and hence, in ejectment, instructions on theory that plaintiff was estopped to assert

title because his testator knew that defendEARNEST V, FITE, (6 Div. 789.)

ant was making valuable improvements on

land on which he lived and made no objection (Supreme Court of Alabama. May 29, 1924.) thereto and asserted no claim of his own, were

properly refused. 1. Adverse possession on 13 - Claimant must 8. Adverse possession 13 - Code require. bring possession within specification of Code. ments held not to apply to claim by prescrip

Since adoption of Code 1907, § 2380, claim- tion of 20 years. ant of title by adverse possession must show Code 1907, 8 2830, requiring claimant by that deed or other color of title has been duly adverse possession to show recorded color of recorded for 10 years, or that title was de- title, listing for taxation, or acquisition of title rived by descent cast or devise from predeces- by descent or devise from one in possession sor in possession, or that he or those through does not apply to claim of title by prescription whom he claims have annually listed land for based on possession for 20 years under claim

of right. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

JJ., concur.

taxation for 10 years.

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