Wilson v. Draper

63 So. 779, 9 Ala. App. 585, 1913 Ala. App. LEXIS 352

• Court: Alabama Court of Appeals
• Decided: November 26, 1913
• Status: Published

Opinion

WALKER, P. J. —

The sole reliance of the defendant, the appellant here, for the defeat of the action against him Avas a crop mortgage made to him by O. M. Russell and Mont Tarrant in February, 1911. At that time Russell was the tenant of Tarrant, and the crop.raised by him that year was grown on Tarrant’s land. The claims of the plaintiff were based upon a subsisting recorded mortgage, which was executed by Tarrant and wife to him in December, 1910, which embraced the land subsequently rented by Russell and “all crops of whatever description that may be raised by the parties of the first part, their tenants or assigns, on the above-described premises, during the time that this mortgage is in force and effect, and until the payment of the whole amount of the indebtedness hereby secured.” It is not to be doubted that this mortgage was effective upon the crop groAvn by Russell, and that the latter’s mortgage to the defendant was subordinate to it. A mortgage of real estate embraces the crops to be grown on it when by the express terms ■ of the mortgage such crops are brought within its scope. — Stewart & Irwin v. Fry’s Adm’rs, 3 Ala. 573; Alabama National Bank v. Mary Lee Coal, etc., Co., 108 Ala. 288, 19 South. 404; note to Dickey v. Waldo, 23 L. R. A. 449; 27 Cyc. 1040, 1144. Neither of the special pleas set up a state of facts under AAdiich the defendant had a right to the crop in question AA'liich was superior to that of the plaintiff under his prior recorded mortgage.

As under the undisputed evidence in the case the judgment in favor of the plaintiff was a proper one, if there was error in any of the rulings referred to in the assignment of errors, it was error Avithout injury to the appellant.

Affirmed.