Opinion
7 Div. 452.
October 30, 1924.
Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.
J. M. Miller, of Gadsden, for appellants.
Counsel insists for error in the decree, and cites Code 1907, § 4289 (1, 7); 3 Mayfield's Dig. 354; Elyton Land Co. v. Iron City Steam Bot. Works, 109 Ala. 602, 20 So. 51; Mortgage Co. v. Sewell, 92 Ala. 171, 9 So. 143, 13 L.R.A. 299; Hooper v. Strahan, 71 Ala. 75; Winter v. Merrick, 69 Ala. 86; Chancery rule 64, Code, 1907, p. 1546.
Shelton Street, of Gadsden, for appellee.
The lease contract does not offend the statute of frauds. Phillips-Neely Mer. Co. v. Banks, 8 Ala. App. 549, 63 So. 31; Code 1907, § 3969.
Appellee had a decree on his bill filed in the circuit court of Etowah county sitting in equity, foreclosing the lien of an equitable mortgage on one bale of cotton grown by defendant Winkle on land rented from one Campmire and delivered to defendants Pelham and Herbert Sitz. Winkle had a parol agreement for the lease of the land for the year 1920. This agreement was entered into in October, 1919. Thereafter, but in the same month, Winkle, to secure a debt to complainant, executed a mortgage of his crops to be grown in 1920, and the bale subjected to the payment of the said debt was a part of the crop raised by Winkle in that year. Winkle went into possession during the last week of 1919. Defendants Pelham and Herbert Sitz pleaded the statute of frauds for that the contract of lease was void, because the rent was not at the time of its execution paid, nor was Winkle put in possession by his lessor. This objection to the right claimed and shown by complainant — as well as others of similar nature which might have been suggested with equal reason — is completely answered by the opinion in Phillips-Neely Mercantile Co. v. Banks, 8 Ala. App. 549, 63 So. 31. There is no need to repeat what is there said. It is enough now to say that the lease contract had been fully performed and was therefore immune to the objection taken against it by defendants. Cases cited on page 272 of Kling v. Tunstall, 124 Ala. 268, 27 So. 420.
Pelham and Herbert Sitz are parties defendant, and in paragraph one of the bill it is averred that they were of age and engaged in the mercantile business under the firm name of Pelham, Sitz Co. The answer admits that the Sitz parties were of age, but denies the remainder of the paragraph. Referring to the testimony of Winkle, who says the cotton in controversy was turned over to Pelham, Sitz Co., defendants insist that the averment of the bill that Pelham and Herbert Sitz were engaged in business as Pelham, Sitz Co. was not proved. But complainant testifies that the cotton was turned over to Pelham and Herbert Sitz. Conceding for the argument the materiality of the point and the sufficiency of the answer to raise it, it will suffice to say that the stated evidence warrants the inference that the Sitzes were doing business as Pelham, Sitz Co., and this inference suffices to answer the contention stated.
Appellants also insist that Exhibit A, the mortgage given by Winkle to complainant, was erroneously admitted in evidence, because complainant in introducing the mortgage, over defendant's objection, violated rule 64 of Chancery Practice, which requires that the opposing solicitor must be served with one day's notice before the hearing that such exhibits will be proved at the hearing. It would seem to be enough to note that there is nothing to show that Exhibit A was proved at the hearing. There is evidence to the effect that the mortgage was executed; but whether this evidence was heard by the court, or whether it was taken by deposition, does not appear. Non constat, the mortgage was proved when depositions were taken by the register or commissioner, and, if so, defendants may be presumed to have had opportunity to offer evidence, if any they had, in denial of its execution.
The court is of opinion that the decree must be affirmed.
Affirmed.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.