Schiffer v. Feagin

51 Ala. 335

• Court: Supreme Court of Alabama
• Decided: June 15, 1874
• Status: Published

Opinion

BRICKELL, J.

The law gives a factor a lien on goods in his possession, for his advances, expenses, commissions, and for any balance due him on general account. But, if the goods come to his possession under a special contract, the lien cannot be asserted in opposition to the terms and conditions of such contract. Thus, if a broker or factor receives goods to sell, and to apply the proceeds in a particular manner, or to the payment of a particular debt, a lien for a general balance due him cannot be set up, to defeat the specific appropriation of the proceeds of sale made by the contract under which the goods were received. Addison on Contracts, 1179; Walker v. Birch, 6 T. R. 258.

2. When a debtor makes a mortgage or assignment as a security for an existing debt, the assignment or mortgage not contemplating and providing for future debts or advancements, the debtor in the making, and the creditor in accepting such mortgage or assignment, can have but one object in view, — the security of the existing debt; and the moneys realized from such mortgage or assignment must be applied to the payment of that debt, to the exclusion of all others. Donally v. Wilson, 5 Leigh, 329; Hicks v. Bingham, 11 Mass. 300; 1 Amer. Lead. Cases, 287; Donald & Co. v. Hewitt, 33 Ala. 534.

3. Debts created, or advances made to a mortgagor, subsequent to the mortgage, cannot be tacked to the mortgage debt, to the prejudice of third persons who have acquired a junior lien on the mortgaged property. Hughes v. Worley, 1 Bibb, 200; Lee v. Stone, 5 Gill & Johnson, 1; Cowden's Estate, 1 Barr, 267; Harker v. Conrad, 12 Serg. & Rawle, 301; Bank of Utica v. Finch, 3 Barb. Ch. 293; Siter, Price & Co. v. McClanahan, 2 Gratt. 280.

An application of these principles to the facts of this case is decisive of the most material questions involved. The appellants were factors, doing business in the city of New York. Haynes, a cotton planter in this State, obtained from them large advances on his growing crop, which he promised to consign to them for sale. As a security for the payment of such advances, he executed a mortgage, with a power of sale, on his growing crop, and on real estate. Subsequently, he obtained further advances, and contracted other debts with the appellants. The cotton was gathered, and a large part of it shipped to the appellants, and was by them sold. Haynes then mortgaged the real estate to the appellee, and afterwards released to him his equity of redemption. The appellee filed this bill, to be let in to redeem on the payment of whatever balance of the mortgage debt was unpaid from the sales of the cotton shipped to appellants. The appellants claimed the right to apply the proceeds of sales to the payment of the subsequent debts and advances, as well as to the mortgage debt. ’ This right, they assert, arises from the lien given them as factors, by the law. Under the principle we have laid down, they are not entitled to such right. The lien given by law yields to the lien- created by the mortgage.

In the case cited, Lord Kenyon, in discussing this question, said : “ There is no doubt, and indeed the point has been so long settled that it ought not now to be brought into dispute, but that in general a factor has a lien for his general balance on the property of his principal coming into his hands. But the question here arises on the application of that proposition to the present case. It is a maxim, as old as our law, Conventio \incit legem. The parties may, if they please, introduce into their contract an article to prevent the application of a general rule of law to it.” The mortgage creates a lien for a particular debt, and devotes the property conveyed to the payment of that debt. There is no room for the operation of the lien which the law would, in the absence of the mortgage, have implied in favor of the appellants. Their rights must be resolved by their contract. There was no error in not allowing them the lien asserted by them as factors.

There are many authorities, which would, as against the mortgagor coming in to redeem, authorize the appellants to demand payment of such advances and debts, before submitting to a redemption. The reason assigned is, that thereby a circuity of action is avoided, and that a court of equity requires him who seeks its aid to do equity. The authorities are not uniform, and on the question we express no opinion. 1 White & Tudor’s Lead. Eq. Cases, 602. The rule seems not to have been applied when the mortgagee sought a foreclosure; for then he was limited to the debt specified in the mortgage, and the reason of the rule ceased. All the authorities concur, that, as against a junior mortgagee, subsequent debts and advances cannot be tacked. In no point of view, did the court of chancery err in disallowing these debts and advances, in ascertaining the amount the appellee should pay as a condition of redemption.

4. The court erred, however, in not allowing the appellants to retain for the bagging and rope furnished to bale the cotton. The mortgage was made on a growing crop, which was to be shipped to the appellants for sale. The mortgage stipulates for the payment to the mortgagor of any surplus of the proceeds of the sales of the cotton, “ less the expenses on said cotton,” remaining after the payment of the mortgage debt, and commissions for advancing it. The parties certainly intended that the cotton should be baled, so as to be capable of transportation to New York, where it was to be sold. It is but a fair construction, that they intended by the term “ expenses of said cotton,” to embrace not only the freight and charges attendant upon the sale, but the costs of baling it, so that it could be transported to the place of sale.

5. The court erred, also, if the mortgage is correctly copied into the record, in not allowing the appellants two and one half per cent, commissions for the advances the mortgage secures, as is stipulated in the mortgage. Such a charge, when not a device for usury (of which there is no pretence in this case), is legal, and is regarded as just compensation for the risk, trouble, and expense, which may be incurred in making the advances. Swilley & Riley v. Lyon & Baker, 18 Ala. 552. No reason is given for departing from the express stipulation in the mortgage, and, as was done, reducing the commissions to two per cent.

For the errors we have pointed out, the decree is reversed, and the cause remanded for further procedings in conformity to this opinion.