Hawkins & Co. v. Parham

On 8 May, 1873, Swain executed a deed to defendants, whereby in consideration of supplies purchased, he agreed to (260) deliver to defendants 8,000 pounds of lint cotton to cover the amount of $1,200, and made a lien on his crops to be raised on his lands and gave a power of seizure and sale on failure to deliver. This deed was registered on 10 October, 1873. On the same day, but by a separate writing, he (Swain) agreed to deliver to defendants 8,000 pounds of cotton before 1 December, 1873, and they agreed to pay him 15 cents per pound for it. This writing was never registered.

On 23 June, 1873, Swain executed a deed to plaintiffs which recited that plaintiffs had advanced to him $909.80 to enable him to cultivate certain lands belonging to his children for that year, and gave to plaintiffs a lien on all his crops made on said lands during said year, after paying to defendants $900, and Swain therein agreed to deliver said crop of cotton to the R. G. R. R. Co., consigned to plaintiffs at Baltimore, on or before 1 November, 1873. This deed was registered 1 July, 1873.

At the date of the deed to the defendants Swain owed the fall of 1873, deliver to defendants 8,000 pounds of cotton raised on his children's land, the value of which at 15 cents per pound would be $1,200, but defendants sold it for $1,800.

At the date of the deed to the defendants, Swain owed them $900, and it does not appear that they made him any further advances.

Defendants offered to prove that the advances mentioned in the deed to plaintiffs of 23 June, 1873, had been in fact made in 1870 and 1871.

The judge rejected the evidence. We concur with the judge that it was immaterial, for although the deed might perhaps not be good to create an agricultural lien under the act, on a crop not planted, yet it was good at common law to create a lien upon a crop then growing, as we must assume the crop conveyed was on 23 June. Petch v.Tutim, 40 M. W., 110; Lunn v. Thornton, 1 C. B., 379; (261) Notes to Ryall v. Vowles, 2 Lans. Ch. C. Eq., 218-236.

It appeared at the trial that Swain, prior thereto, had paid the plaintiffs all of his debt to them except $375, which with interest from 1 January, 1875, he still owed.

The plaintiffs claimed that the excess of the sum ($1,800) for whichdefendants sold the 8,000 pounds of cotton over the $900, which Swain owed the defendants, passed to them (the plaintiffs) to the extent of Swain's debt to them, and not merely the excess of the price to which Swain was toreceive for the cotton ($1,200). The judge was of opinion with the plaintiffs, and gave judgment accordingly, from which the defendants appealed.

This we conceive to be the only question fairly presented upon the facts.

To determine it, we must ascertain what estate in the cotton the defendants acquired by Swain's contract with them on 8 May. Undoubtedly as between them and Swain they acquired an estate in the cotton at the price of 15 cents per pound, as a security for the $900 owing to them, and on payment of the residue of the price their estate in the cotton was absolute. And it would have been so as to all the world if their contract (embracing both writings of the same date) had been registered on the same day. But the mortgage was not registered until 10 October, and it took effect as to creditors and purchasers from Swain only from that day, before which the plaintiffs had acquired their rights and estate.

If we consider both writings of 8 May as forming a single contract, both were void as to the plaintiffs for want of registration, and the plaintiffs' title to the cotton was valid and complete at law, although subject to an equity to pay defendants $900, and to certain equities to Swain which need not be noticed. The defendants, however, contend that the writings of 8 May were two distinct contracts, and that although the mortgage might be void for want of registration, (262) the other writing was an executed contract of sale which required no registration, and passed the property in the cotton to them from its date. If the writing in which the price of the cotton is agreed on was a contract of sale, a question of some interest might arise as to its effect. But we think this writing is clearly executory. No cotton is particularly described in it, and it might be satisfied by the delivery by Swain of any cotton, wherever raised.

It follows, then, that as the plaintiffs were entitled to the cotton in specie, subject to the equity of the defendants above mentioned, they may waive the tort and claim the value of the cotton in the hands of the defendants to the extent of the debt in excess of the $900, and are not confined to the excess over the price which the defendants were to pay. We consider the case as meaning that the value of the cotton, when it should have been delivered to the plaintiffs, was $1,800.

By force of the registration law, the deed to the defendants must be considered as having been made on 10 October, the day of its registration, and consequently with notice of the deed to plaintiffs which was registered on 1 July. Defendants, as between them and the plaintiffs, are not entitled to retain their $900 by virtue of their deed of 8 May, but by virtue of its appropriation to them in the deed of 23 June.

PER CURIAM. No error.

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