Booker v. Jones

55 Ala. 266

• Court: Supreme Court of Alabama
• Decided: December 15, 1876
• Status: Published

Opinion

BRICKELL, C. J. —

1. It is insisted for the appellants that the mortgage is void, as a conveyance of the cotton, because it is a conveyance operating according to its terms, in. prce-senti, and the cotton had not then an actual or potential existence. The cause was before this court at a former term, and is reported as Jones, adm’x v. Webster et al., 48 Ala. 109. It was then decided that the mortgage was a valid, operative conveyance, vesting in the mortgagee a legal title to the cotton as it came into existence.

The operation and effect of mortgages of personal property not in existence, or not owned by the mortgagor at the execution of the mortgage, the future acquisition of which was contemplated by the parties, is the subject of much discussion, and of great diversity of judicial decision. It is universally admitted, and is a mere truism, tbat a sale, grant, or mortgage of property, real or personal, in 'prcesenti, to which the vendor, grantor, or mortgagor has no title, or which has no existence, is inoperative and void, in a court of law or equity. If the thing exists as between the parties, possession being: transferred, operation or effect may be given the sale or conveyance ; but, as against the party in whom the title resides, it is without force. If the thing has no existence, there is-no subject of sale, grant, or mortgage. Things not actually existing, but having a potential existence, as it is usually expressed — “ things which are the natural product or increase of something already existing, and the property of the vendor ” — may be the subject of a sale, grant, or mortgage. A. growing crop, however immature its state, and whatever of labor may be required for its cultivation to maturity, and its severance from the soil, is a personal chattel, subject at common law to execution against the tenant, passing to his personal representative, not descending with the land to the heir, and is the subject of sale or mortgage. — Adams v. Tanner, 5 Ala. 740; Evans v. Lamar, 21 Ala. 333; McKenzie & Son v. Lampley, 31 Ala. 528; Robinson & Caldwell v. Mauldin, Montague & Co., 11 Ala. 977.

The mortgage was not of a growing crop ; the mortgagors-had not entered on the leased premises, and had not a right to enter for more than two months after the execution of the mortgage; and the cotton would not be planted for more than two months after the right of entry accrued. The mortgage was, therefore, intended to operate on cotton not planted, but which it was contemplated the mortgagors would, in proper season, after entry on the leased premises, plant and cultivate to maturity, and which during the term they should annually plant anct cultivate. If no other relation existed between the parties than that of mortgagor and mortgagee, we incline to the opinion, that if, at law, the mortgage would be invalid as a conveyance of things not in existence, unless ratified by some act done by the mortgagor after their acquisition, in equity it would attach to the crop, as it came into existence, transferring the beneficial interest-against the mortgagor and all others than a bona fide purchaser without notice. — 1 Chit. Cont. 528-30; Benjamin on Sales, § § 78, 84; Butt v Ellet, 19 Wall. 544; Sillers v. Lester, 48 Miss. 513; Stewart & Irvine v. Fry, 3 Ala. 573; Kirksey v. Means, 42 Ala. 426; Abraham v. Carter, June term, 1875, in manuscript.

As between the mortgagor and mortgagee, standing in the relation of lessor and lessee, we concur in the former decision, that the operation and effect of the lease and mortgage is a reservation to tbe lessor of the title to the crops of cotton grown during the term on the leased premises, as a security for the performance of the lessees’ covenant to pay the rent. The lease and mortgage were simultaneously executed, and relate to the same subject-matter; the mortgage recites and refers to the lease, and they are parts of one transaction, and may well be construed and considered as if they constituted a single instrument. The crop to be grown on íeased premises is by statute subjected to a lien for the payment of rent, attaching to it as it comes into existence, and preserved against all the world except bona fide purchasers without notice. If it is removed, or is about being removed from the premises, the landlord may by attachment, in a court of law, subject it to the lien. — Revised Code, § § 2961-2-3. The statute does not change the title to the crop —no right of property, or right of possession, is conferred on the lessor. Property and possession remain in the tenant, or in the lessee; but a right to charge it, or, rather, a charge of the rent upon it, in priority of all other rights than those of a bona fide purchaser, is declared. As between lessor and lessee, the statutes regard a crop to be grown during the term as the subject of a lien in favor of the lessor.

We cannot perceive any substantial reason for declaring that the parties may not, by the stipulations of the lease, enlarge, or diminish, or entirely abrogate the statutory lien. It may not be deemed a sufficient security to the lessor for the payment of the rent; why may it not be enlarged by a reservation to him of the title to the crop as it comes into existence ? It is the lease which deprives him of the title to-the crops, which would follow as an incident to the fee ; and we think, it competent for him, in the creation of a term for years, to define the quantum of the interest the lessee may take a d hold, and the quantum of interest he will reserve. Leases, creating only mere terms for years, may be dependent on conditions, or reservations may be made, which could not be supported in conveyances of the fee. A condition, annexed to a grant of the fee simple, forbidding all alienation, would be void, because repugnant to the character and quantity of the fee. An incident to a lease for years is the right of the lessee to assign the lease, or to underlet the premises. A covenant against assignment, or against underletting, with a condition that its breach works a forfeiture of the lease, and that the lessor may re-enter, is valid. If the condition is broken, and the lessor re-enters, he is in as of his former estate; and a crop growing on the premises passes to him — Davis v. Eyton, 7 Bing. 154. But, if the lease contains a stipulation that, notwithstanding the expiration of tbe term, tbe lessee should haye tbe growing crop, and, baying planted or sowed, be should transfer or sell it, the stipulation is operative, and tbe transfer or sale valid. Such was tbe case of Grantham v. Hawley, Hobart, 133, so generally referred to in support of tbe proposition, tbat a grant of tbat wbicb tbe grantor has potentially, tbougb not actually, is valid. In tbat case, tbe. lease contained a covenant, tbat on tbe expiration of tbe term, tbe lessee should have tbe right “ to take and carry away to bis own use such corn as should be growing upon tbe ground.” Tbe lessee having sowed tbe corn, and afterwards tbe term expiring, made a sale of it, which was supported. Tbe corn having been planted, was a chattel, tbe subject of sale; and title to it was by tbe lease reserved to the lessee, tbougb tbe term expired before severance. Tbe lease limited and qualified tbe reversion of tbe lessor.

Bent may be reserved, payable in kind, in tbe products of tbe soil; and if so reserved, whether title remains in the lessor, or passes to tbe lessee, is determinable by tbe words of tbe stipulation in the lease, and not on tbe inquiry whether tbe products exist actually or potentially, so as to be tbe subject of grant or sale. The lease may be so expressed, that tbe title to tbe crops will follow tbe term, until there is severance and delivery to tbe lessor, as in Rhinhart v. Olive, 5 Watts & Serg. 157, and other cases. Or, it may be reserved to tbe lessor, as in Kelly v. Weston, 20 Maine, 232, in wbicb the tenant agreed to cultivate and bag tbe bop crop of tbe year for tbe lessor, in payment of tbe rent. Lands in this State are frequently let upon shares — upon contracts by wbicb tbe tenant is to cultivate them, and share tbe crop with tbe landlord. Tbe rights of tbe parties depend entirely on tbe particular terms of tbe contract, and their intention as it may be collected from these terms. No rule of law is offended, if tbe relation of landlord and tenant is not created; if it is a mere contract for tbe payment of wages, in a share of tbe crops; or if it is a mere tenancy in common of tbe crops, without transferring any interest in tbe soil, or transferring merely tbe bare right of occupancy. — 1 Wash. Real Prop. 496-501. It is for tbe parties to define tbe relations wbicb they may assume, and tbe rights and interests wbicb are created. The lessor may except, or reserve from tbe lease, tbat wbicb be does not choose to grant; and may retain a title to any part of tbe products the tenant consents be should retain.

In Moulton v. Robinson, 7 Foster (N. H.), 550, it is bpld, where lands are leased, reserving a part of tbe crops in lieu of rent, tbe contract takes effect by way of reservation, and the crops thus reserved remain the property of the landlord. So, in Smith v. Atkins, 18 Verm. 461, it was held, that a lease of land, reserving rent, and which provides that all the crops raised on the land dnriDg the term are to be the property of the lessor until the rent is paid, is valid, and will entitle the lessor to hold such crops against the creditors of the lessee. The same principle is affirmed in several subsequent cases in Vermont, cited in Bellows v. Wells, 36 Vermont, 599; and is held in Lewis v. Lyman, 22 Pick. 436. Begard-ing the lease and mortgage as one instrument, the result is, that the lessor reserved to himself the title to the crops of cotton grown on the leased premises during the term, until the rent was paid, and until payment of the rent title to them could not vest in the lessee.

3. While the title to the cotton is reserved to the lessor, possession is reserved to the lessee, until the rent of the year in which it is grown becomes due and payable; and coupled with the possession, the lessee has the authority to ship it for sale to a factor of his selection. Such separation of the title and the possession is generally found in mortgages of real and personal pi'operty in this State, and results from the character of a mortgage, which, though it operates as a conveyance, vesting title in the mortgagee, is intended as a security for a debt. In the absence of such reservation in a mortgage, the possession would follow the title, and could be taken by the mortgagee, even before the law-day, or, speaking more accurately, before the mortgage debt became due, and there was default in its payment. — Ellington v. Charles, 51 Ala. 168; Pickard v. Low, 3 Shep. 48. If possession was reserved to the mortgagor, it was, prior to the statute (R. C. § 2871), a right of property subject to levy and sale under execution at law. — 1 Brick. Dig. 905, §§ 207-212. The stipulation in the mortgage operates a reservation to the lessees of the possession and right to the possession of the cotton crop grown on the leased premises, until the 31st of December of each year, when the rent becomes due and payable. Until that day, the lessor, though having the title, as a strict mortgagee would have, has no right to the possession. If, when that day arrived, the lessees had not exercised the authority to ship the cotton, the possessory right with which they are clothed having terminated, the title of the lessor would draw to it the possession. But, having exercised the authority, as in the case before us, the lessor’s right to possession cannot attach, and his right is then to payment of the rent, froip. the proceeds of sale. The cotton was shipped and sold, when the lessees had possession, and the right of possession, and authority to ship it for sale. Conversion is the gist of an action of trover; and to support tbe action there must be a concurrence of tbe right of property, general or special, and of possession, or tbe immediate right of possession, in tbe plaintiff at tbe time of tbe conversion. — 1 Chit. Pl. 148-151; Ellingion v. Charles, supra; Pickard v. Low, supra; Wheeler v. Train, 3 Pick. 255. Tbe appellee not having possession, or tbe right of possession, when tbe shipments and sales of tbe cotton were made (if they could be deemed a conversion), though tbe right of property resided in her, could not maintain trover, whatever other remedy tbe evidence may authorize.

Nor can tbe shipment and sale of tbe cotton be deemed a conversion. There was no wrongful taking, or wrongful detention — no illegal assumption of ownership, or illegal user, or misuser. The shipment and sales were authorized by the stipulation. A conversion is always tortious, and from it no rights can be acquired.- — Sargent v. Blunt, 16 Johns. 74; Bromley v. Coxwell, 2 Bos. & Pul. 438; Jones v. Font, 9 B. & C. 764. If the shipment and sale were tortious, the purchasers from the factors acquired no title, which they could maintain against the appellee, and would be equally liable with the factors and the lessees to an action of trover, — a proposition which would scarcely be asserted.

4. The stipulation requires the factors, to whom the cotton is shipped, from the proceeds of sale to pay the lessor the rent of the current year. The factor having made the sale, and having notice of the lessor’s rights, before paying over the proceeds to his principal, becomes liable to pay the lessor so much of the proceeds as may be necesssary to satisfy the rent. An agent, receiving money to which his principal is not entitled, which, ex cequo et bono, belongs to another, on demand made, or notice being given him of the right of the true owner, becomes liable to him, and cannot relieve himself from the liability by a subsequent payment to his principal. — Story on Agency, §§ 300, 801; Houston v. Frazier, 8 Ala. 81; Gayle v. Benson, 3 Ala. 234. The proceeds of sale, or so much thereof as would pay the rent, could be recovered by the lessor of the factor, in an action for money had and received. Such action lies, whenever the defendant has money which, ex cequo et bono, belongs to the plaintiff, and which the defendant has not a legal or equitable right to retain. No privity of contract is essential to support it, except that which the law implies. — 1 Brick. Dig. 140, §§ 72, 73.

The factor may have made advances to the lessees, or to his principal, if another than the lessee, entitling him, as against the principal, to a lien on the cotton, or the proceeds of sales. Tbe lien cannot be asserted against tbe lessor; nor would tbe factor, because of snob advances, bave any right, legal or equitable, to retain against tbe lessors. To constitute tbe factor’s lien for a balance due bim from bis principal, two things must concur — possession by tbe factor, and a right in tbe principal to tbe property, upon which tbe lien is to operate. Therefore, it has been held, that if, before the goods come to tbe possession of tbe factor, tbe principal has divested himself of right and title, tbe lien cannot attach.— Ryberg v. Snell, 2 Wash. C. C. 403; Mauldin, Montague & Co. v. Armistead, 14 Ala. 702; Swilley & Riley v. Lyon & Baker, 18 Ada. 552. Or, if tbe goods come to bis possession after a secret act of bankruptcy, committed by tbe principal, be is not entitled to retain for advances made after such act, though on tbe faith of tbe consignment. — Story on Agency, § 377. Tbe liens which tbe law creates in favor of agents, and factors, and carriers, in tbe interest of trade and commerce, operate only on the right and title of those with whom they deal. If they bave no title, or a qualified, conditional title, it is tbe misfortune of those who trust them. In Robinson v. Baker, 5 Cush. 137, it is held that a common carrier, who innocently receives goods from a wrongdoer, without tbe consent of tbe owner, express or implied, has no lien upon them for their carriage against such owner; and it is said, “Upon this settled and universal principle, that no man’s property can be taken from bim without bis consent, express or implied, tbe books are full of cases, many of them bard and distressing cases, where honest and innocent persons bave purchased goods of others, apparently tbe owners, and often with strong evidence of ownership, but yet who were not tbe owners, and tbe purchasers bave been obliged to surrender tbe goods to tbe true owners, though wholly without remedy for tbe money paid. There are other bard and distressing cases, of advances made honestly and fairly, by auctioneers and commission-merchants, upon a pledge of goods by persons apparently having tbe right to pledge, but who in fact bad not any such right, and tbe pledgees have been subjected to tbe loss of them by tbe claim of the rightful owner. These are hazards to wliicb persons in business are continually exposed by tbe operation of this universal principle, that a man’s property cannot be taken from bim without bis consent.”

Tbe factor, under the stipulation we are considering, would bave tbe right to retain tbe ordinary commissions for making sales, and such charges as be may have paid for tbe transportation, and in tbe sales of tbe cotton. Tbe right of tbe .lessor is to the net proceeds — or tbe payment of tbe rent from these — tbe shipment and sale being within the stipulation, and necessary to give it effect. Beyond this, he has no lien, but takes the cotton, and sells, and holds the proceeds of sales, as his principal held and shipped, subject to the liability the principal had impressed on it, having notice of such liability, before paying the proceeds to the principal. We mean, of course, a payment in money, and not a mere passing of the proceeds in account to the credit of the principal. There must, before notice of the right, have been a change by the factor of his situation from that in which he stood when the cotton came to his possession, to entitle him to retain, or to defend against the claim of the lessor. — Story on Agency, § 300.

From the view we have taken of the rights of the appellee, and of the liabilities of the factors, and of the lessees, it is apparent the present action is- misconceived. The only grievance of which the appellee can complain is, that the factors have not, from the proceeds of the sales of the cotton, paid her the money to which she is entitled; or that the lessees have not paid the rent, as by the covenant in the lease, and the promissory notes made by them, they were bound to pay. The refusal and failure of the factors, or of the lessees, is a breach of promise, not a tort, for which the appellee can have adequate redress in forms of action ecc contractu, but not in an action ex delicto. The distinctions between these forms of action are not obliterated, but preserved by our statutes. It is important that they be observed; “else we shall fall into a distressing state of uncertainty and confusion.” In Masters v. Stratton, 7 Hill, 104, it is said by Nelson, C. J., “but where the action is not maintainable without referring to a contract between the parties, and laying a previous ground for it by showing such contract, then the plaintiff must proceed upon the contract, and a special action on the case will not he.” Applying the rule to this case, it seems clear that the only remedy of the appellee is ex contractu. The liabilities of all the parties rest in contract, and are essentially different, not common in obligation, and incapable of joinder in a suit against all of them. The liability of the factor is in an action of assumpsit, for money had and received. It springs out of the contract between the lessor and the lessees. — without that contract, it would have no existence, and without reference to that contract cannot be shown. No such liability rests on the lessees — they have not received money to which the appellees are entitled. Their liability is for the rent, and rests on the covenant in the lease, and the promissory note.

If one person receives money, to be paid to another, the duty and obligation of payment arise; or, if one, on a sufficient consideration, verbally promises another to pay Ms debt to a third, the promise is valid; and in either case, the person to whom the money is to be paid, may recover of the promisor in an action ex contractu, but not in an action ex delicto. If the present action was supported, the well defined distinction between actions would be disregarded, and any breach of promise might be converted into a tort. The shipment of the cotton, and its sale, were not tortious. Of these the appellee cannot complain, because the stipulation of the mortgage, into which the lessor entered, authorized each. We repeat, her only grievance is the failure of the factors to pay her money to which she is entitled, or of the lessees to pay the rent. No other wrong has been done. For this wrong, an action ex contractu is the appropriate, and the only remedy. — Hodgers v. Lathrop, 1 Sand. 46.

The judgment must be reversed, and the cause remanded.