Seay v. McCormick , 68 Ala. 549 ( 1881 )

SOMEEYILLE, J.

The mortgage introduced in evidence in this case is not void for uncertainty, as insisted by the appellants’ counsel. The description of the crops conveyed is very general and indefinite, but is capable of being rendered certain by showing the lands cultivated by the mortgagor for the year 1880, and the quantity of the crops respectively raised. This point was so ruled in Ellis v. Martin, 60 Ala. 394, where a mortgage was ineffectually assailed on a like ground.

So, likewise, the instrument being inartificially drafted and without any points or marks of punctuation, as appears from an inspection of the original, the rules of proper construction authorize these to be supplied by the court so as best to effectuate the intention of the parties.—2 Bouv. Law Dict. Titles, Punctuation and Points. The contract, too, must be construed mostly strongly against the mortgagor, as the party stipulating for the payment of a debt, or the performance of a duty. It is a sound rule of interpretation that all instruments should be taken “ contra proferentem,”—against him who gives, or undertakes, or enters into an obligation. 2 Parson’s Contr. 19-20; 1 Brick. Dig. 386, § 162. Applying these principles in connection with the maxim ut res magis valeat quam pereat, we are of the opinion that the validity, of the mortgage must be upheld, and the punctuation supplemented so as to make it read, “ my entire crop of cotton, [cotton] seed, fodder etc., that I may raise the present year on my place,” etc. This construction is simple, and carries out, as we think, the evident intention of the contracting parties.

The Circuit Court erred, however, in the eharge given on the effect of the evidence. The action brought in this case was trover for the alleged conversion of one bale' of cotton, which is shown to be a part of the crop included in the mortgage. But the mortgage was executed on January 10, 1880, before the cotton was planted. Under the authority of Grant v. Steiner, 65 Ala. 499, this did not convey to the mortgagee a legal title, but an equitable one only, which eould not support an action of trover.

For this erroneous ruling of the Circuit Court the judg- . ment is reversed and the cause remanded.