Caldwell, Hughes Patterson v. Yarbrough , 186 S.W. 350 ( 1916 )

Notwithstanding it appeared from testimony that the mortgages from McDonald and Dewberry to appellants were made and duly registered as required by law before the time when said McDonald and Dewberry made the mortgages to appellee, and further appeared that the indebtedness of McDonald and Dewberry to appellants which the mortgages to them were made to secure was unsatisfied; notwithstanding the admission in appellee's pleadings that he had "taken charge of and converted four bales of cotton raised by said Dewberry and McDonald," and the agreement of the parties at the trial that appellee "got four bales of cotton raised by the negroes McDonald and Dewberry on the land which defendant Yarbrough sold to them," the trial court thought appellants were not entitled to recover as sought by them, unless appellee was in the attitude of being estopped by the conversation over the telephone, set out in the statement above, from claiming as against them a lien on the cotton superior to the lien they claimed. Therefore that court refused appellant's request to instruct the Jury to find in their favor, and, instead, instructed the jury to find against them, unless they believed that in the conversation referred to appellee agreed or led appellants to believe he would not take a lien on the crops to be grown by McDonald and Dewberry during the years 1913, 1914, and 1915 on the land he sold to them. Appellee insists, and the trial court doubtless thought, that he was the vendor of the crops, that the lien asserted by him was for the purchase price thereof, and therefore that his lien was superior to that of appellants, notwithstanding theirs was prior in point of time. Had it appeared that appellee was the vendor of the crops the view the trial court seems to have taken of the case would have been correct, for, as is said in 5 R.C.L. § 27, p. 404:

"Where a mortgage is given to cover after-acquired property it covers such property only in the condition in which it comes into the hands of the mortgagor. If that property is already subject to mortgages or other liens at that time the general mortgage does not displace them, though they may be junior to it in point of time. It attaches only to such interest as the mortgagor acquires; and if he purchases property and gives a mortgage for the purchase money the bill of sale which he receives and the mortgage which he gives are regarded as one transaction, and the prior mortgage cannot displace such mortgage for the purchase money."

But appellee was not the vendor of crops to be grown on the land. He was the vendor of the land alone, and the indebtedness of McDonald and Dewberry to him secured by the mortgages was for purchase money of the land, and not of crops they contemplated growing thereon. League v. Sanger, 25 Tex. Civ. App. 347, 60 S.W. 898. This being true, no reason is apparent why, if valid, appellants' mortgages should not have been held to be superior to those of appellee. If they should have been, then the judgment should have been for appellants instead of for appellee. The question then is: Were the mortgages made to appellants valid? In Richardson v. Washington, 88 Tex. 339, 31 S.W. 614, the Supreme Court held, quoting the syllabus:

"When a mortgage is given on crops, not yet in existence, and to be grown on land to which the mortgagor has no lease at the time, equity will enforce the mortgage as a lien on the crops when they do come into the possession of the mortgagor, when their acquisition was contemplated at the time the mortgage was made."

As it cannot be doubted from testimony in the record that appellants and McDonald and Dewberry contemplated at the time the latter made the mortgages to the former that the latter would acquire from appellee the right to grow crops on the land he sold to them, and would grow crops thereon, it must be held that the mortgages to appellant were valid within the rule recognized by the Supreme Court. If they were, then they became a lien on the crops when grown, and entitled to enforcement as against the junior mortgages to appellee.

It follows we are of opinion the court erred when he refused to charge the jury to find for appellants. Therefore the judgment will be reversed, and judgment will be here rendered in appellants' favor against appellee for $140 — the value of the four bales of cotton, averaging in weight 500 pounds each, at 7 cents a pound — together with interest thereon from April 20, 1915, at the rate of 6 per cent. per annum.