Varnum v. State

78 Ala. 28

• Court: Supreme Court of Alabama
• Decided: December 15, 1884
• Status: Published

Opinion

SOMERVILLE, J.

The indictment charges the defendant with selling or removing certain cotton, for the purpose of hindering, delaying or defrauding a named person, who was averred to have a lawful and valid claim thereto, under a written instrument, lien created by law for rent or advances, or other lawful and valid claim, verbal or written, the defendant having at the time a knowledge of the existence of such claim. The statute creating this offense is found in section 4353 of the present Code, and no question is raised as to the sufficiency of the indictment.

It is shown that the defendant had sold certain cotton raised by him in the year 1880 in Henry county; the only question of controversy being, whether there was a lawful or valid claim on it, within the meaning of the statute. The evidence of this claim was a written mortgage, executed by the defendant on the fifth day of January, 1880, conveying to one Oates, as the instrument recites, “ my entire crop of every description raised by me, or caused to be raised by me annually, till this debt is paid.”

It is objected to the admission in evidence of this mortgage, that it was void for uncertainty in the description of the crops intended to be included in it. Whatever force there may be in this objection to the instrument on its face, this alleged uncertainty was capable of being removed, when read in the light of the circumstances surrounding the contracting parties at the time of its execution, by extraneous parol identification. — Ellis v. Martin, 60 Ala. 394; Meyer Bros. v. Mitchell, 75 Ala. 475. The bill of exceptions fails to set ont all the evidence introduced in the court below, and we are bound to presume that there was such evidence of identification as authorized the introduction of the mortgage. In such cases, every reasonable intendment will be made which may be necessary to sustain the ruling of the primary court.

There can be no doubt of the proposition, that valid equitable liens and mortgages fall within the purview of the statute, as well as those valid at law. The language of the section is, ‘lawful or valid claim, verbal or written,” which is very broad, and comprehensive. Lawful means not contrary to, or sanctioned by law, and valid means having legal force.

The mortgage in question, it is true, was executed before the crops were planted, or could have been in esse. But the rule is now firmly settled in this State, that an equitable lien is created by such conveyances, where the thing mortgaged has a potential existence, by which is meant “ a present interest in property, of which the thing sold or conveyed is the product, growth or increase, as opposed to a mere possibility or expectancy, not coupled with such an interest.” — Mayer v. Taylor, 69 Ala. 403 ; s. c., 44 Amer. Rep. 522 ; Grant v. Steiner, 65 Ala. 499. It must be presumed, in the absence of any recital that the bill of exceptions contains all the evidence, that the proper proof was made as to the defendant’s interest in the land upon which the cotton was grown, upon the principles to which we have already adverted.

The rulings of the court are free from error, and the judgment is affirmed.