Thompson v. Anderson , 212 Ala. 101 ( 1924 )

Suit by attachment brought by appellee's intestate against appellant. The court correctly overruled appellant's motion to strike the several counts of the complaint. The motion appears to have proceeded upon the ground of a variance as to the due date of the claim in suit between the affidavit and the said counts. Attachment was sued out on the ground that defendant, tenant under appellee's intestate, was about to remove from the premises or otherwise dispose of a part of the crop thereon. Upon that ground appellee's intestate was entitled to the writ whether the debt claimed as for rent and advances was due or not. Section 4739 of the Code of 1907. The affidavit is repugnant with itself. It alleges that the debt sought to be collected was due, and that it would become due. The complaint was filed after the debt became due and was proof against objection. Appellant's recourse, if any he had, was against the affidavit; but that would have availed him nothing because plaintiff would have been afforded an opportunity to amend. Sections 4741 and 2965, Code of 1907.

Objection is taken against the judgment rendered on the ground, for one thing, that, the rent note having been made payable to the husband of appellee's intestate — by mistake, as plaintiff's evidence tended to show — plaintiff's intestate remained silent while a creditor of the husband was proceeding to judgment against appellant as garnishee for the amount evidenced by the note. This objection is sufficiently answered by the consideration that plaintiff's intestate was not a party to the garnishment proceeding. Griel Bros. Co. v. Brooks,176 Ala. 577, 58 So. 552, is cited to show that plaintiff's intestate — who died pending this appeal — should have been estopped to deny her husband's ownership of the note taken in his name. But in that case the husband of the landlord had full authority to manage her lands and collect rents. Here, according to a well-developed tendency of the evidence — which tendency we must assume the court, trying this case without a jury, accepted — the husband had no such authority, his testimony was that the contract of rental was negotiated between his wife and defendant, and, upon the whole, there appears to be no reason for doubting that the wife was the true owner of the debt evidenced by the note, and the trial court may well have found that defendant knew that fact.

The court adjudged a lien in favor of plaintiff upon two acres of cane in the field, among other crop products of the land. The agreement between the parties as to the cane was, to employ the language of the witness husband who testified without objection, that —

"There was some cane raised on the place and my wife told him that she would furnish the seed cane and fertilizer and he could make it on halves and the balance of the land was rented for standing rent."

This agreement under section 4742 of the Code as amended March 8, 1915 (Acts, p. 134), created "the situation of landlord and tenant with all its incidents, and to all intents and purposes." For the value of one-half the cane plaintiff had, therefore, a lien upon the whole; but this contract as to the cane appears to have been entirely separate from the contract for standing rent, and, on the case presented, our opinion is that the court should not have adjudged a lien upon the cane for the standing rent, which was the only rent claimed in the complaint. However, it does not appear that the amount of plaintiff's judgment was augmented by one-half the value of the cane or any part thereof — rather the contrary. Defendant retained possession of the property levied on by giving a forthcoming bond, and now plaintiff's judgment has been superseded by defendant's appeal bond. The levy upon the cane would have been discharged upon defendant's motion. No such motion was made, and as the case now stands we apprehend defendant has suffered no prejudice by the judgment rendered.

The note to secure advances was separate from the note for rent, purports to have been executed in the state of Florida, and bore interest at the rate of 10 per centum per annum. Appellant complains that the trial court erred in rendering judgment for interest. If, in the circumstances, the contract for advances was usurious — a question the defendant does not appear to have had in mind at the trial — there are two answers to his complaint on this appeal: Usury was not pleaded; consistently with the evidence, the judgment may be explained on the hypothesis that it does not include interest in any amount on the indebtedness evidenced by the note for advances.

Finding no reversible error, the judgment must be affirmed.

Affirmed.

ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.