Abraham v. Carter , 53 Ala. 8 ( 1875 )

BRICKELL, C. J.

At common law, things not in actual existence, but which are said to have a potential existence, that is, things which are the natural product or expected increase of something already belonging to the vendor, were the subject of sale or assignment. Thus a sale or assignment of the profits arising out of the use of a personal chattel owned by the vendor, as the income to be derived from the navigation of a steamboat, or a crop of cotton growing on lands of which the vendor had possession, has been supported by the judgment of this court. Stewart v. Fry 3 Ala. 573; Robinson v. Mauldin 11 Ala. 977. A thing not having an existence, actual or potential, but the future acquisition of which is contemplated, if not capable of assignment or sale, is the subject of a valid agreement to assign or sell, as the wool of any sheep, or the milk of any cow, that the promissor may buy within the year, or any goods to which he may obtain title within a specified time. Benjamin on Sales, §78. So a mortgage of the hire or use of slaves, the mortgagor “may hire the next year to make a crop with,” and the entire crop he may make the present and next year, though it is only contemplated the slaves maj*' be hired, and the crops planted, has been deemed valid, the lien attaching when the slaves AYere hired, or the crops grew, and binding them from that time. Floyd v. Morrow 26 Ala. 353. Butt v. Ellett, 19 Wall. 544; Sillers v. Lester, 48 Miss. 513 ; It may be, that in a court of law, an assignment only of a right or interest, which is absolutely fixed and in esse, is enforced. In a court of equity, assignment not only of dioses in action, but of contingent interests and expectancies, and also of things, which have no present actual or potential existence, but rest in mere possibility only, are supported. The assignment operates by Avay of present contract, to take effect and attach to the things assigned, when and as soon as they come in esse. Mitchell v. Winslow, 3 Story 639.

The operation of the statute, creating liens for advances to make crops, (R. C. §. 1858-60,) is to attach to the mortgage or assignment of the crop not planted, or planted and not matured, made in the form, and on the consideration prescribed, the force and effect of a mortgage or assignment of personal chattels, having an actual or potential existence, and to provide a speedy remedy for the enforcement of the rights of the mortgagee or assignee. The right of the assignee, is certainly equal in dignity to the right of any holder of a mere chose in action. It may not be capable of transfer, so that the transferree can pursue in his own name, the legal remedy for its enforcement, which the assignee or mortgagee is authorized to pursue. The transfer will create an interest in the transferree, which a court of equity will protect.

At law, while a sale of goods, to which the vendor has not title, or of which he has not possession is void, yet, if the vendor subsequently acquired title, and did. any new act, for the avoAved purpose of carrying the sale into effect, the sale became valid. Head v. Goodwin, 37 Maine 181; Jones v. Richardson, 10 Metc. 481. In Bryan v. Smith, 22 Ala. 534, an executory contract for the delivery of cotton in pledge, to secure a debt, was executed by the delivery of the cotton, and the right of the creditors to hold it prevailed over a subsequent attaching creditor of the debtor.

The transfer by Shulman, Goetter & Weil, to the claimant, of the statutory mortgage made by Williams, gave him in a court of equity all the rights of his transferrors. When the mortgagor delivered to him the cotton Avhich was the subject of mortgage, this equity was coupled with possession, and gave him a title on which he could maintain trespass, detinue or trover against any one who should disturb his possession. Bryan v. Smith, supra. A trial of the right of property under the statute is a cumulative remedy to these actions, and, may when personal property is seized under legal process, be maintained, whenever these actions would lie against the officers making the seizure.

The charges of the city coui-t, to which exceptions were taken, conformed to these views, and its judgment is affirmed.