Ala.)

GAY & BRUCE v. W. B. SMITH & SONS

, (100 So.)

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

(Supreme Court of Alabama. May 29, 1924.)

4. Chattel mortgages 150(1)-Must be re-
corded in county of mortgagor's residence to
another
constitute constructive notice in
county.

Under Code 1907, § 3376, mortgage must have been recorded in county of mortgagor's residence to constitute constructive notice in another county.

2. Chattel mortgages 229 (3)-Burden of showing recordation in county of mortgagor's residence on plaintiff mortgagee.

Burden held on mortgagee of cotton suing for conversion to show that mortgage was recorded in county of mortgagor's residence, so as to constitute constructive notice to purchasers in another county.

3. Trial 253(3)-Instructions ignoring issue to proper recordation of mortgage of property involved, held properly refused.

as

Instructions in mortgagee's action for conversion of cotton, ignoring issue as to whether plaintiff's mortgage was recorded in county of mortgagor's residence, so as to constitute notice in another county, held properly refused. 4. Chattel mortgages 159-Mortgagee of crop has legal title and is entitled to pos

session after crop gathered.

Mortgagee of crop grown by tenant has legal title and is entitled to possession according to terms of mortgage after crop is gathered, when mortgage is given after January 1st of the year in which the crop is grown. 5. Landlord and tenant 328 (2)-Tenant may not, without landlord's consent, remove crop subject to lien or defeat landlord's rights by mortgage.

Tenant may not, without landlord's consent, remove crop on which landlord has lien from premises nor otherwise dispose of same, and cannot by mortgage pass any greater right than he has as against the landlord.

6. Landlord and tenant 328 (2)—Landlord and tenant may apply crop to satisfaction of landlord's lien to detriment of mortgagee.

a

A landlord and tenant may in good faith apply crop to satisfaction of landlord's lieh, in manner to cut off a mortgagee of a tenant; the landlord's lien being paramount by statute. 7. Landlord and tenant 328 (3)-Consent to sale mere waiver of lien and to be valid against mortgagee must be on landlord's account.

A landlord's mere consent to tenant's sale of crop is a mere waiver of his lien, and to render the sale valid as against a mortgagee, the sale must not only be made with the landlord's consent, but on his account and for the purpose of satisfying his lien.

8. Chattel mortgages 155 - Purchaser of cotton with knowledge of mortgage takes no title which will defeat action by mortgagee. Purchaser of cotton from tenant, with actual or constructive notice of mortgage, takes

9. Chattel mortgages 229 (3)-Evidence held
admissible to show good title of defendant
purchaser from mortgagor.

In mortgagee's action for conversion of cot-
ton sold by tenant mortgagor, evidence that
landlord was liable on tenant's note given in
payment for mules, that proceeds of cotton
was to be applied to rents first and then to
payment of note, held admissible to show law-
ful sale for benefit of landlord, giving good ti-
tle to purchaser.

10. Chattel mortgages 229(1)—Instruction as to recording of mortgage and sale by mortgagor without landlord's consent held improperly denied.

In mortgagee's action for trover and conversion of cotton sold by mortgagor, where evidence was in conflict as to whether mortgage was recorded in county of mortgagor's residence, instruction that if mortgage was executed after mortgagor moved into county in which it was recorded, and if the cotton was sold without consent of mortgagor's landlord, then verdict should be for plaintiff, held improperly refused.

Appeal from Circuit Court, Clay County; George F. Smoot, Judge.

Action in trover and detinue by S. J. Gay and J. S. Bruce, doing business as Gay & Bruce, against W. B. Smith and others, doing business as W. B. Smith & Sons. Judgment for defendants, and plaintiffs appeal. Reversed and reTransferred from Court of Appeals under Acts 1911, p. 449, § 6. manded.

These charges were refused to plaintiffs: "1. The court charges the jury that if you are reasonably satisfied from the evidence that the mortgage was executed by H. C. Pitts to plaintiff after Pitts moved into Randolph counand involved in this suit was sold without auty, and that the bale of cotton raised by Pitts thority from the landlord, then your verdict will be for the plaintiff."

"2. The court charges the jury that if you are reasonably satisfied from the evidence that the landlord did not authorize H. C. Pitts, his tenant, to sell the bale of cotton, at or before the time of the sale to the defendants, your verdict should be for the plaintiffs."

"3. The court charges the jury that if you are reasonably satisfied from the evidence, after having considered all of it, that Claudie Fuller, the landlord, did not authorize the sale satisfied from the evidence, after having conof the cotton to defendants, and you are further sidered all of it, that the indebtedness of the plaintiffs' mortgage had not been paid at the dict should be in favor of the plaintiffs for the time of said purchase of said cotton, your verdamages which you find, from the evidence, plaintiffs sustained."

"B. The court charges the jury that if you are reasonably satisfied from the evidence that Claudie Fuller did not authorize H. C. Pitts to sell the bale of cotton involved in this suit

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

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. It is simply released, and the tenant proceeds in his own right to sell it. Foxworth v. Brown Bros., 120 Ala. 59, 24 South. 1.

[8] Such a sale cannot affect the rights of the mortgagee. A purchaser, with actual or constructive notice of the mortgage, takes no title which will defeat an action of deti

This and other rulings bring under review the legal rights and duties of landlord, ten-nue or trover by the mortgagee. ant, and mortgagee of crops.

[4] A mortgage on a crop given after Jan

(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 comin the sense of a mere waiver of his lien. plainant relief, dismissed her bill of comThe 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. given therefor, that the landlord was bound thereon, that the balance of proceeds of this bale of cotton, after payment of rents, was to be held for payment on that note, was properly received. This was pertinent to show a lawful sale of the cotton for the benefit of the landlord, giving a good title to the purchaser.

The complainant and defendant were married on November 18, 1919; they lived together about two years, and then separated. [1] Did the defendant become addicted to habitual drunkenness after their marriage? is the real question presented by the record; and the burden of proof rests on the complainant. 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. versed, and the cause remanded.

Reversed and remanded.

All the Justices concur.

SOMERVILLE, J., concurs in the result

only.

HOWELL v. HOWELL. (8 Div. 631.) (Supreme Court of Alabama. June 5, 1924.) 1. Divorce 109-Burden of proof that husband became habitual drunkard after marriage held to be on complainant.

In view of Code 1907, § 3797, and section 3793, subd. 6, as amended by Gen. Acts 1911, p. 631, and Gen. Acts 1919, p. 839, burden of proof that husband became addicted after marriage to habitual drunkenness held to rest on complainant.

2. Divorce 22-Husband occasionally drinking to excess held not addicted to habitual drunkenness.

Where husband's drinking to excess was occasional only, and not habitual with him, he was not a person who became addicted after

marriage to habitual drunkenness. 3. Courts

104-Appellate court not required to discuss correctness of conclusion

from weight of evidence.

The appellate court is not required under the statute to show correctness of trial court's conclusion from weight of evidence.

Acts 1919, pp. 839, 840. This court, in State V. Savage, 89 Ala. 8, 7 South. 7, 183, 7 L. R. A. 426, defined habit and drunkenness. It was approved in State v. Robinson, 111 Ala. 482, 20 South. 30, and it was quoted recently with approval in Moor v. Moor (Ala, Sup.) 99 South. 316, and we need not repeat it here.

[2] The complainant knew before her marriage to the defendant that he drank occasionally to excess. She lived in the home of his father for two years prior to the marriage, and he resided there a part of the time. She was 30 years of age when they married. The defendant from the evidence did not contract the fixed habit of frequently getting drunk after their marriage. Before and since their marriage, from some of the evidence, he did occasionally drink to excess, but this evidence does not pronounce him an habitual drunkard. He occasionally, not frequently, drank to excess; it was not habitual with him; sobriety was the rule, and occasional drinking to excess was the exception in his life. He could not be declared under the evidence as a person who became addicted after his marriage to complainant to habitual drunkenness. To entitle complainant to a divorce on that ground the burden rested on her to make that proof; the court below held she failed to meet the burden placed on her, denied her that relief,

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

Bill for divorce by Saleta Howell against J. M. Howell. From a decree denying relief, complainant appeals. Affirmed.

Tennis Tidwell, of Albany, for appellant.
Eyster & Eyster, of Albany, for appellee.

MILLER, J. This is à bill in equity by Saleta Howell against J. M. Howell, seeking a divorce from the bonds of matrimony on the ground said defendant became addicted

ities supra.

[3] We will not discuss the testimony and show the correctness of this conclusion from the weight of the evidence. The statute from it, and neither party could profit by it. does not require it. No good could come The decree of the court is free from error, and is affirmed. Affirmed.

ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.

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

GRESHAM v. POGUE et al.

(Supreme Court of Alabama.

(5 Div. 883.) May 15, 1924. Rehearing Denied June 19, 1924.) Alteration of instruments 17-Unauthorized alteration in timber grant held not to authorize cancellation of conveyance.

That erasure of the word "oak" in a grant of timber rights was not made by grantors, or authoritatively did not authorize trial court to cancel conveyance entirely and enjoin a removal of any timber, since the unauthorized alteration did not divest title to oak timber originally granted.

terest of said Gresham in said timber to terminate. Witness this Nov. 28, 1921."

It is alleged that at the time of the extension, respondent got possession of complainants' copy of the contract, and that when it was returned it had been altered by the erasure of the word "oak"; that respondent had his copy of the contract recorded after said extension agreement, and that the record omits the word "oak"; that respondent has cut other timber from the lands; that he is erecting a saw mill upon the land for the purpose of cutting all timber on the lands; that there remains but little of the oak timber on the tract, but that there is timber

Appeal from Circuit Court, Tallapoosa thereon, other than oak, of the value of $2,County; S. L. Brewer, Judge.

Bill in equity by Ella Pogue and another against W. L. Gresham. From the decree respondent appeals. Corrected and affirmed. The bill alleges that complainants, on January 10, 1921, entered into a contract with respondent, in substance as follows:

That we,

"The state of Alabama, Tallapoosa county. Know all men by these presents: Miss Ella Pogue and A. L. Pogue, for and in consideration of two hundred ($200.00) dollars to us in hand paid by W. L. Gresham, the receipt whereof we do hereby acknowledge, do hereby give, grant, bargain, sell, enfeoff and convey unto the said W. L. Gresham all of the oak timber located on the following described real estate, lying in Tallapoosa county, state of Alabama, to wit: All oak timber on the lands known as the old John L. Pogue Place, South and Southwest of the Veazy or Lockett branch and back to the road known as the Robinson Ferry road and to the old Veazy settlement road, located in beat nine. Said Gresham is to have twelve months in which to remove said timber from these lands and is to have the right of ingress and egress over all lands of the said Miss Ella Pogue and A. L. Pogue for the purpose of removing said timber, and is to have the right to locate a mill on said lands, and any other rights that may be necessary for the said Gresham to handle and remove said timber. All timber hereby sold to said Gresham is to be of ten inches diameter at the stump, and the said Gresham is not to cut any timber of lesser diameter, except for roadways or other necessary purpose in connection with the removing of the larger timber. All timber not so cut by said Gresham within the twelve months from date is to revert to and to become the property of Miss Ella Pogue and A. L. Pogue."

000, the cutting of which would work irreparable loss upon complainants, for the reason that respondent is not financially able to respond in damages.

The prayer seeks a temporary injunction; a cancellation of the contract in the event it is found respondent has removed timber other than oak to a value greater than that of the oak remaining; or, if it be found the contract was changed or altered without the consent of complainants, that it be corrected and reformed, etc.

By his answer respondent denied altering the contract, and asserts that the change therein was made by complainants with the purpose of conveying all the timber upon the lands in question.

The trial court decreed that the original contract had been altered, but that the alteration was not made by complainants; that the contract of record be canceled; that, respondent having cut other than oak timber the time extension agreement be canceled, and all rights under the contract be divested out of the respondent; and respondent is permanently enjoined from exercising any right under the contract.

From this decree the respondent prosecutes this appeal.

Jas. W. Strother, of Dadeville, for appellant.

Geo. C. Douville and G. J. Sorrell, both of Dadeville, for appellees.

ANDERSON, C. J. It is agreed that the original contract conveyed only the oak timber upon the land, but the respondent contends 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 strick

inal contract:

"For and in consideration of the sum of one dollar to me in hand paid by W. L. Gresham, the receipt whereof is hereby acknowledged, I do hereby extend the time in which said Gresham has to cut and remove the timber herein described to the 10th day of January, 1924. At the expiration of said date, all rights and in

en from the conveyance by mutual consent, and so stricken the instrument would operate to convey all timber upon the land instead of the "oak" only, as originally conveyed. The complainants contend that the word "oak" was not stricken by them or by any one else with their knowledge or consent and that nothing was said about the other tim

(100 So.)

ant by adverse possession tending to show possession not adverse held competent.

Where defendant claimed land by adverse possession, his admissions that he regarded it as part of his father's estate, though made after lapse of 10 or 20 years from inception of his possession, were competent to show his possession was not hostile and adverse.

3. Trial 56-Excluding question, answer to which would have added nothing to defendant's case, not error.

Where evidence showed that father of

claimant by adverse possession gave claimant use of property as home, and hence it would have added nothing to defendant's case to have shown that his father never demanded rent, there was no error in excluding evidence to that effect.

4. Witnesses

159(4)-Question prima facie objectionable as calling for statement by deceased person whose estate was interested.

ber when the time extension agreement was 2. Evidence 222(3)—Admissions by claimsigned. We have carefully considered the evidence and are of the opinion that the weight of same, taking into consideration the surrounding circumstances and details, supports the conclusion of the trial court that the erasure of the word "oak" was not made by the complainants and that the original was not so authoritatively changed as to convey any timber other than the "oak." The trial court, therefore, properly held that the complainants were entitled to relief, but should have more properly ordered the reassertion of the word oak in the conveyance and the record of same and enjoined the respondent from removing any timber from the land other than the oak instead of canceling the conveyance entirely and enjoining a removal of any of the timber. The original document was an executed conveyance of the oak timber and the unauthorized alteration, even if made by the grantee, did not divest the title originally granted by the instrument, and, though altered, it continued as a memorial of the conveyance and as evidence to prove the existence of title in the grantee as originally conveyed. Ala. State Land Co. v. Thompson, 104 Ala. 570, 16 South. 440, 53 Am. St. Rep. 80. It appears that under the extension the respondent had 10 months, or, more accurately speaking, 9 months and 28 days, within which to cut and remove the oak timber, when the injunction was issued, and the decree of the circuit court is corrected so as to correct conveyance and record as above indicated and the injunction is modified so as to exclude from the operation of same the oak timber of the size limit as conveyed by the original instrument and the respondent is given 9 months and 28 days from the rendition of this judgment within which to cut and remove said oak timber.

The decree of the circuit court is corrected and modified, as above indicated, and affirmed.

Corrected and affirmed.

SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.

EARNEST v. FITE. (6 Div. 789.) (Supreme Court of Alabama. May 29, 1924.)

1. Adverse possession 13 - Claimant must bring possession within specification of Code.

Since adoption of Code 1907, § 2380, claimant of title by adverse possession must show that deed or other color of title has been duly recorded for 10 years, or that title was derived by descent cast or devise from predecessor in possession, or that he or those through whom he claims have annually listed land for taxation for 10 years.

In view of Code 1907, § 4007, question to defendant as to whether his deceased father ever asked him to pay rent on land claimed by adverse possession was prima facie objectionable as calling for statement by deceased person whose estate was interested in result. 5. Witnesses 159 (4) Testimony of conversation between defendant and deceased father properly excluded.

-

Testimony of claimant of land by adverse possession as to transactions between him and his deceased father, relating to renting and collection and disposition of rents, held inadmissible, under Code 1907, § 4007, as calling for statement by deceased person whose estate was interested in result.

6. Witnesses 159 (7)-Defendant could not state deceased father gave him property claimed by adverse possession.

In view of Code 1907, § 4007, claimant of land by adverse possession could not testify that his deceased father gave it to him, notwithstanding evidence of adverse witness that after father's death defendant said witness could swear that father had given witness' wife a place and also had given defendant land in question.

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 defendant was making valuable improvements on land on which he lived and made no objection thereto and asserted no claim of his own, were properly refused.

8. Adverse possession 13 - Code requirements held not to apply to claim by prescrip. tion of 20 years.

Code 1907, § 2830, requiring claimant by adverse possession to show recorded color of title, listing for taxation, or acquisition of title by descent or devise from one in possession does not apply to claim of title by prescription 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