This is the second appeal in this case. 214 Ala. 297,107 So. 849.
We think the sixth count of the complaint not only sufficiently charges that the plaintiff had a lien, but that the defendant had notice that the cotton in question was subject to said lien.
It is true section 8806, of the Code of 1923, not only gives the landlord a lien on the crop grown by the tenant but upon the proceeds of the sale of said crop. It is also true, that there cannot be a total or entire destruction of the lien until the crop is disposed of and the proceeds are beyond reach of the landlord. Ehrman v. Oats, 101 Ala. 608, 14 So. 361.
But we have held, that a landlord may maintain case against one who, with notice of the landlord's statutory lien, purchases from the tenant crops grown on the rented lands, and removes or converts them so as to defeat or otherwise obstruct the enforcement of such lien by the statutory remedy of attachment. Thompson v. Powell, 77 Ala. 391. "The principle is analogous to, if not strictly identical with, that which affords a like remedy against one who converts property upon which a plaintiff has an equitable mortgage." First National Bank v. Sproull, 105 Ala. 280, 16 So. 879.
It is true, the complaint proceeds upon the theory of a total destruction and prevention of the enforcement of the lien, rather than an obstruction, but we do not think it was subject to ground (d) of defendant's demurrer, the one insisted upon in brief. The complaint avers how the lien was destroyed and how plaintiff was prevented from enforcing her lien, that is by selling and disposing of the cotton. If these facts do not show a total destruction of the lien so as to prevent the enforcement thereof, the demurrer does not point out the defect.
It is insisted, that the defendant was entitled to the general affirmative charge because a purchaser for value of the warehouse receipts. True, under the "Uniform Law for Warehouse Receipts," section 10509, of the Code of 1923, makes them negotiable if issued under the terms of section 10506, and sections 10549 and 10550 deal with transfers and the title thereby acquired, but we find nothing in these provisions protecting any one, but a bona fide purchaser, that is, one who purchases for value and without notice, express or implied, of a superior claim or title. Farmers' Warehouse Co. v. Barnett,214 Ala. 202, 107 So. 46. Indeed, the main case relied upon by appellant's counsel, Commercial National Bank v. Canal-Louisiana Bank Trust Co., 239 U.S. 520, 36 S.Ct. 194,60 L.Ed. 417, in effect, holds that only bona fide purchasers are protected, that is, purchasers without notice. To like effect is the case of Warrant Warehouse Co. v. Cook, 209 Ala. 60,95 So. 282. There was evidence from which the jury could infer that the defendant not only knew that Sims was the plaintiff's tenant, but that the cotton was grown on her place and was subject to her lien. At any rate, there was proof of such facts from which the jury could infer that the defendant could have easily ascertained that the cotton was subject to the plaintiff's lien, facts which would have put a prudent man on inquiry and which if followed up would have disclosed the plaintiff's claim.
It is conceded that the rule, as above stated, is supported by the cases of Craft v. Russell, 67 Ala. 9, and Starr Piano Co. v. Baker, 8 Ala. App. 449, 62 So. 551, but it is contended, that this rule has been changed by the Uniform Warehouse Receipt Act and that a purchaser is protected, unless he has
notice of the claim of another and is not chargeable with facts which would put a prudent man on inquiry, and which if followed up would lead to a discovery of the said claim. We cannot agree to this contention, and do not think that the act in question was intended to change or modify a well-defined definition or rule as to what constitutes a bona fide purchaser.
We do not think the case of Spires v. Jones, 212 Ala. 117,101 So. 753, is in conflict with this holding or was intended to relieve a purchaser from pursuing substantial facts which would put a prudent man on inquiry, and which would lead to the discovery of a superior claim. There the court held that a mere suspicion of facts which only related to a fraudulent but invisible state of mind would not affect the bona fides of the purchase. This case does not hold, that the existence of visible or substantial facts which would put a prudent man on inquiry need not be followed up, although they would lead to the discovery of a superior claim. In fact, the opinion says, "There was at that time nothing to affect their validity, nor would any sort or degree of inquiry have discovered anything, so far as the evidence shows." Here we have, according to the plaintiff's evidence, not only knowledge on the part of the defendant's officer that Sims was the tenant of the plaintiff for the year 1920, but for several years previous thereto, as well as a course of dealing between the bank and Sims for several years during said relationship.
There was no error in refusing the defendant's requested charges 11, 12, 13, 14, 15, and 16. Nor was there error in so much of the oral charge of the trial court as is made the basis of the 12th assignment of error.
There was no reversible error in so much of the oral charge as is made the basis of the 13th assignment of error. Whether correct or not, if erroneous it was without injury as this record affirmatively shows that the jury did not find that the defendant was an innocent purchaser or lienor of the cotton.
We think the trial court erred in not sustaining the defendant's motion, to exclude the evidence of Mrs. Sims as to mixing the cotton, and made the basis of the third assignment of error. The witness testified on redirect examination: "If he lacked any bale of cotton he picked on his home place, he would make out from the other, and if he lacked at that place he would pick out from the home place and just mix it together." On recross the witness stated: "* * * I actually didn't see it. I said he mixed it because that was his rule, that fall I didn't actually see it." The motion to exclude specifically stated, "the evidence of the witness that if Sims did not have enough cotton picked off of one place to make a bale, he would mix it with cotton picked off of another place." The witness on recross showed that she did not know the facts to which she had testified.
There was no error in refusing the defendant's requested charge 13. If not otherwise faulty, it invaded the province of the jury, as it was for it to determine whether or not the facts therein hypothesized, amounted to a waiver of the lien for advances.
We think that charge 11, refused the defendant, if not otherwise faulty, is misleading and confusing as to the intermingling of the cotton and there was no error in refusing same.
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This is the second appeal in this case. 214 Ala. 297,107 So. 849.
We think the sixth count of the complaint not only sufficiently charges that the plaintiff had a lien, but that the defendant had notice that the cotton in question was subject to said lien.
It is true section 8806, of the Code of 1923, not only gives the landlord a lien on the crop grown by the tenant but upon the proceeds of the sale of said crop. It is also true, that there cannot be a total or entire destruction of the lien until the crop is disposed of and the proceeds are beyond reach of the landlord. Ehrman v. Oats, 101 Ala. 608, 14 So. 361.
But we have held, that a landlord may maintain case against one who, with notice of the landlord's statutory lien, purchases from the tenant crops grown on the rented lands, and removes or converts them so as to defeat or otherwise obstruct the enforcement of such lien by the statutory remedy of attachment. Thompson v. Powell, 77 Ala. 391. "The principle is analogous to, if not strictly identical with, that which affords a like remedy against one who converts property upon which a plaintiff has an equitable mortgage." First National Bank v. Sproull, 105 Ala. 280, 16 So. 879.
It is true, the complaint proceeds upon the theory of a total destruction and prevention of the enforcement of the lien, rather than an obstruction, but we do not think it was subject to ground (d) of defendant's demurrer, the one insisted upon in brief. The complaint avers how the lien was destroyed and how plaintiff was prevented from enforcing her lien, that is by selling and disposing of the cotton. If these facts do not show a total destruction of the lien so as to prevent the enforcement thereof, the demurrer does not point out the defect.
It is insisted, that the defendant was entitled to the general affirmative charge because a purchaser for value of the warehouse receipts. True, under the "Uniform Law for Warehouse Receipts," section 10509, of the Code of 1923, makes them negotiable if issued under the terms of section 10506, and sections 10549 and 10550 deal with transfers and the title thereby acquired, but we find nothing in these provisions protecting any one, but a bona fide purchaser, that is, one who purchases for value and without notice, express or implied, of a superior claim or title. Farmers' Warehouse Co. v. Barnett,214 Ala. 202, 107 So. 46. Indeed, the main case relied upon by appellant's counsel, Commercial National Bank v. Canal-Louisiana Bank Trust Co., 239 U.S. 520, 36 S.Ct. 194,60 L.Ed. 417, in effect, holds that only bona fide purchasers are protected, that is, purchasers without notice. To like effect is the case of Warrant Warehouse Co. v. Cook, 209 Ala. 60,95 So. 282. There was evidence from which the jury could infer that the defendant not only knew that Sims was the plaintiff's tenant, but that the cotton was grown on her place and was subject to her lien. At any rate, there was proof of such facts from which the jury could infer that the defendant could have easily ascertained that the cotton was subject to the plaintiff's lien, facts which would have put a prudent man on inquiry and which if followed up would have disclosed the plaintiff's claim.
It is conceded that the rule, as above stated, is supported by the cases of Craft v. Russell, 67 Ala. 9, and Starr Piano Co. v. Baker, 8 Ala. App. 449, 62 So. 551, but it is contended, that this rule has been changed by the Uniform Warehouse Receipt Act and that a purchaser is protected, unless he has
notice of the claim of another and is not chargeable with facts which would put a prudent man on inquiry, and which if followed up would lead to a discovery of the said claim. We cannot agree to this contention, and do not think that the act in question was intended to change or modify a well-defined definition or rule as to what constitutes a bona fide purchaser.
We do not think the case of Spires v. Jones, 212 Ala. 117,101 So. 753, is in conflict with this holding or was intended to relieve a purchaser from pursuing substantial facts which would put a prudent man on inquiry, and which would lead to the discovery of a superior claim. There the court held that a mere suspicion of facts which only related to a fraudulent but invisible state of mind would not affect the bona fides of the purchase. This case does not hold, that the existence of visible or substantial facts which would put a prudent man on inquiry need not be followed up, although they would lead to the discovery of a superior claim. In fact, the opinion says, "There was at that time nothing to affect their validity, nor would any sort or degree of inquiry have discovered anything, so far as the evidence shows." Here we have, according to the plaintiff's evidence, not only knowledge on the part of the defendant's officer that Sims was the tenant of the plaintiff for the year 1920, but for several years previous thereto, as well as a course of dealing between the bank and Sims for several years during said relationship.
There was no error in refusing the defendant's requested charges 11, 12, 13, 14, 15, and 16. Nor was there error in so much of the oral charge of the trial court as is made the basis of the 12th assignment of error.
There was no reversible error in so much of the oral charge as is made the basis of the 13th assignment of error. Whether correct or not, if erroneous it was without injury as this record affirmatively shows that the jury did not find that the defendant was an innocent purchaser or lienor of the cotton.
We think the trial court erred in not sustaining the defendant's motion, to exclude the evidence of Mrs. Sims as to mixing the cotton, and made the basis of the third assignment of error. The witness testified on redirect examination: "If he lacked any bale of cotton he picked on his home place, he would make out from the other, and if he lacked at that place he would pick out from the home place and just mix it together." On recross the witness stated: "* * * I actually didn't see it. I said he mixed it because that was his rule, that fall I didn't actually see it." The motion to exclude specifically stated, "the evidence of the witness that if Sims did not have enough cotton picked off of one place to make a bale, he would mix it with cotton picked off of another place." The witness on recross showed that she did not know the facts to which she had testified.
There was no error in refusing the defendant's requested charge 13. If not otherwise faulty, it invaded the province of the jury, as it was for it to determine whether or not the facts therein hypothesized, amounted to a waiver of the lien for advances.
We think that charge 11, refused the defendant, if not otherwise faulty, is misleading and confusing as to the intermingling of the cotton and there was no error in refusing same. We think the defendant should have been permitted to show by the witness, Shackelford, the cashier, whether he was or was not acquainted with the business affairs of Sims, as having some bearing upon the duty to make inquiries and whether or not it would have led to a discovery of the fact that the cotton was subject to a lien. For instance, if Sims was only engaged in farming on plaintiff's land, the fact that the cotton was subject to her lien was more easily ascertained than if Sims farmed on other land or obtained cotton through other business channels. In fact, we stated in effect in a former part of this opinion that the course of business between Sims and the bank, was a circumstance to be considered in fixing notice on the defendant and the amount of diligence required in ascertaining the true facts. The question here does not seem to be identical with the ones held to be immaterial upon the former appeal.
There was no error in refusing charge 4, made the basis of the 17th assignment of error. If the tenant stored the Nelson cotton in the warehouse together with other cotton, and it thereby became so commingled that there was no way of identification so as to separate one from the other, the plaintiff's lien extended prima facie to the entire lot. Burns v. Campbell, 71 Ala. 271; Alley v. Adams, 44 Ala. 609; Lehman, Durr Co. v. Kelly, 68 Ala. 192.
So much of the oral charge as made the basis of the 9th and 10th assignments of error is not faulty. The 9th simply states that the plaintiff's lien was superior to that of a purchaser with notice. Nor was the definition or explanation of notice as complained of in the 10th assignment of error improper. It not only requires notice of the relationship, but that the cotton was raised on the rented land and this was sufficient. Atkinson Turner v. James, 96 Ala. 214, 10 So. 846. We do not interpret the former opinion in this case as holding to the contrary.
For the errors pointed out the judgment of the circuit court is reversed and the cause is remanded.
Reversed and remanded.
SOMERVILLE, THOMAS and BROWN, JJ., concur.