Cobb v. Daniel , 105 Ala. 335 ( 1894 )

COLEMAN, J.

J. C. Ragan rented some land on what is called the "Jimmie Wester place. ” It seems he also rented apiece of land on the "Joe Wester place.” After renting the land he executed a mortgage to W. A. Cobb by which he conveyed the "entire crop grown by me the present year, or which I may aid in or cause to be grown, on my lands, or any other lands that I may cultivate, or aid in or cause to be cutivated.” These terms are broad enough to cover whatever interest J. C. Ragan may have had in the crops. The defendant Daniel got possession of some of the cotton raised by the aid and assistance of J. C. Ragan on the Jimmie Wester place, which he converted to his own use. The plaintiff sued him, counting in case in one count and in trover by a second count. The defendant Daniels claimed title under a subsequent mortgage, executed by John Ragan on his "crop of cotton grown the present year on lands formerly belonging to James Wester, dec’d.” John Ragan was a minor son of J. C. Ragan, lived with him and worked with him, as his other children. Both J. C. Ragan and his minor son, John Ragan, worked together and made the cotton in question. There is no evidence that J. C. Ragan consented to the execution of this mortgage by his son John Ragan, or ever ratified it, or consented to the removal of the cotton by Daniel under his claim. There is evidence that J. C. Ragan consented to and recognized his son’s right to cotton raised on the ‘ ‘Joe Wester place,’.’ but there seems to be no controversy as to any cotton raised on the “Joe Wester place. ” The evidence is not as clear and' definite as we would like to have it; but as we construe it, as contained in the record, it shows that the cotton in ' controversy was covered by the mortgage executed to W. A. Cobb in February, 1890. This being true, it was not competent for J. O. Bagan himself, much less his minor son, to , execute a subsequent mortgage to Daniel, and thereby give him a lien prior to the lien ofW. A. Oobb. There is no question of notice raised by Daniel as to the existence of the Oobb mortgage.

The mortgage contained in the record was sufficiently identified by the bill of exceptions, to authorize and require the clerk to copy it in the transcript. The testimony abundantly shows that the word “July” was a mere clerical error in copying.

Beversed and remanded.