Opinion
8 Div. 551.
May 17, 1923.
Appeal from Circuit Court, Morgan County; Robert C. Brickell, Judge.
Tennis Tidwell, of Albany, for appellant.
The plaintiff was not entitled to recover any interest, the mortgage being tainted with usury. Defendant was entitled to this defense. Barclift v. Fields, 145 Ala. 264, 41 So. 84; Ford v. Washington, etc., 10 Idaho, 30, 76 P. 1010, 109 Am. St. Rep. 192; 39 Cyc. 1067. Where a tenant has permission from the landlord to sell cotton, and where the proceeds are paid to the landlord as rent, to the extent of the landlord's rent there can be no conversion by the purchaser of which a mortgagee can complain. Beall v. Folmar, 122 Ala. 414, 26 So. 1. If the value of the property converted was in excess of the mortgage debt and interest, the measure of appellee's recovery was the amount of the debt and interest; if the value of the property was less than the mortgage debt and interest, the measure of recovery was the value of the property. Jones v. White, 189 Ala. 622, 66 So. 605; Ryan v. Young, 147 Ala. 660, 41 So. 954; McDaniel v. Sullivan, 144 Ala. 583, 39 So. 355. Where, before the trial of an action of trover, plaintiff regains possession of the property or any part thereof, the value of this property should be estimated in the reduction of damages. The check offered with appellee's indorsement should have been admitted. Renfro's Adm'x v. Hughes, 69 Ala. 581; Stephenson v. Wright, 111 Ala. 579, 20 So. 622; Semple v. Yielding, 16 Ala. App. 584, 80 So. 158.
G. O. Chenault, of Albany, for appellee.
The defense of usury is personal. Eslava v. N.Y., etc., Ass'n, 121 Ala. 480, 25 So. 1013. The matter of plea 3 was admissible under the general issue. An action for conversion will not lie in favor of one holding merely an equitable title. Beall v. Folmar, 122 Ala. 414, 26 So. 1; 38 Cyc. 2072; Marks v. Robinson, 82 Ala. 79, 2 So. 292; 38 Cyc. 2049. The defense set up in plea four was not available to this defendant. Keith v. Ham, 89 Ala. 591, 7 So. 234; Smith v. Hilton, 147 Ala. 645, 41 So. 747; Mutual Warehouse Co. v. Hamilton, 171 Ala. 85, 55 So. 116; Bird v. Womack, 69 Ala. 390; Tallassee Falls Co. v. Bank, 159 Ala. 317, 49 So. 246. Not all the ingredients of a legal payment are shown by the check offered. 30 Cyc. 1181.
The suit is in two counts, for conversion of personality and for the destruction of a lien. The sufficiency of the count, in case, for the destruction of the lien, is not controverted, and nothing is decided as to this. There was judgment for plaintiff.
Assignments of error challenge the sustaining of demurrer to plea 2 and the rulings in rejection of evidence. Appellant's counsel says that these rulings present the same question: The right of plaintiff to recover from the defendant usurious interest included in the mortgage, upon which the suit is based. The questions: "Westmoreland only loaned approximately $200?" and, "The amount was $200, and the interest amounting to $16 was included in the mortgage?" were intended to elicit the fact that $16 interest was charged on a loan of $200 and added to the face of the mortgage, dated March 10, 1920, and due December 1, 1920. The mortgage, executed by J. C. Sparks to W. D. Westmoreland, embraced the crop to be "raised" by the mortgagor, "his family, or hands during the year 1920" on lands rented from one Crow. The respective objections to said questions being sustained, due exceptions were reserved.
Usury is a personal defense available to the party, or his representatives or heirs at law, sought to be bound by the contract tainted therewith. A stranger to the transaction will not be allowed to plead and prove that the contract was usurious. There are many applications by this court of this rule. McGuire v. Van Pelt, 55 Ala. 344; Bernheimer v. Gray, 201 Ala. 462, 78 So. 840; Griel Bros. v. Lehman, Durr Co., 59 Ala. 419; Masterson v. Grubbs, 70 Ala. 406; Moses Bros. v. Home, etc., Ass'n, 100 Ala. 465, 14 So. 412; Stickney v. Moore, 108 Ala. 590, 19 So. 76; Eslava v. N.Y. Nat. B. L. Ass'n, 121 Ala. 480, 25 So. 1013; Nance v. Gray, 143 Ala. 234, 38 So. 916, 5 Ann. Cas. 55; Speakman v. Oaks, 97 Ala. 503, 11 So. 836; Welsh v. Coley, 82 Ala. 363, 2 So. 733. The case of Barclift v. Fields, 145 Ala. 264, 41 So. 84, relied upon by appellant, was a bill filed by the mortgagor to enjoin a foreclosure sale and for redemption. The observations therein contained are without application to the instant rulings, sustaining demurrer to plea 2 and sustaining objections to the foregoing questions. There was no error.
The action of the trial court in sustaining demurrers to pleas 3 and 4 is challenged. The demurrer was well assigned to plea 3. An equitable title is not sufficient to sustain or defeat an appropriate action for the recovery of personal property or in trover for the value thereof. Hicks v. Meadows, 193 Ala. 246, 69 So. 432; Crow v. Beck, 208 Ala. 444, 94 So. 580; Tucker v. Speer, 202 Ala. 604, 81 So. 546; Carleton v. Kimbrough, 150 Ala. 618, 43 So. 817. Moreover, the judgment sought to be set up was res inter alios acta as to defendant.
The legal title or superior lien to the crop grown on Crow's lands, as between the landlord and tenant or the landowner and laborer cultivating the same and raising the cotton in question, was in Crow; the tenant or laborer only having a lien thereon or title subject to the landlord's superior lien. As the mortgagee of Sparks — the tenant or laborer, as the case may be — Westmoreland, therefore, had only a claim on the part of the crop which was in subordination to Crow's superior lien or title. It follows that Hodges had the right, in diminution of the damages claimed of him for the purchase of the cotton, to show what portion of the proceeds of the sale of the cotton (raised on Crow's land) was paid to Crow in the discharge or extinguishment of the latter's superior claim or title. The mortgagee of the laborer or the tenant cannot complain in trover of a sale of a portion of the crop sold with his permission, for the benefit of the landlord, or the owner of the land, so long as the latter's title or interest in the crop exists or is unextinguished. Crow v. Beck, supra; Beall v. Folmar Sons Co., 122 Ala. 414, 26 So. 1; Bush Co. v. Willis, 130 Ala. 395, 399, 30 So. 443; Pinckard v. Cassels, 195 Ala. 353, 357, 70 So. 153. Evidence in reduction of damages may have been given under the general issue.
Assignments of error present for review the action of the trial court in declining to admit in evidence a check of date November 3, 1920, on the Morgan County National Bank for $108.87, payable to the order of J. C. Sparks (the mortgagor in question), signed "Davis Hodges" (the defendant), and indorsed thereon, "For 1 B. C.," which the evidence shows was the purchase price paid by Hodges for one bale of cotton. On the face of the check were indorsements, "Teller No. 1," and, "Paid 11-3-20, M. C. N. B." This court has judicial knowledge that such indorsement, of date of payment, was that of November 3, 1920. Sovereign Camp of W. O. W. v. Reed, 208 Ala. 457, 94 So. 910. Further indorsements on the back of the check were: "J. C. Sparks." "W. D. Westmoreland." Before this check was offered in evidence, plaintiff had testified that his name was W. D. Westmoreland, and it was his signature on the back of the check. The defendant's evidence showed that the check in question was "one of the checks which I (Hodges) gave for the cotton in question"; that the check came back in the usual course of business, marked "paid" by the bank, with the indorsement in question, in about a month after it was given to Sparks. Here defendant offered in evidence the check; plaintiff's objection was sustained, and to this ruling exception was duly reserved. There was error in excluding this evidence. Speaking generally, the measure of damages in such a case is the amount of the mortgage debt and interest thereon, not exceeding the value of the property embraced therein and made the subject of the suit. If the value of the property converted was less than the amount of the mortgage debt and interest, the measure of damages was the value of the property converted. McDaniel v. Sullivan, 144 Ala. 583, 39 So. 355; Ryan v. Young, 147 Ala. 660, 41 So. 954. In Jones v. White, 189 Ala. 622, 66 So. 605, the rule declared as the measure of damages in trover is "the value of the property at the time of the conversion, with interest, but, if the evidence shows a fluctuation in value after the conversion, the jury, in their discretion, may fix the value of the higher or highest price at any time between the conversion and the time of trial." Howton v. Mathias, 197 Ala. 457, 73 So. 92. In an action in trover, when plaintiff's title is based on a chattel mortgage, the measure of damages is as we have stated above. The check was delivered by Hodges to and indorsed by Sparks, the payee, and following the indorsement of Sparks was that of the plaintiff. Having been paid on such indorsements, the prima facie presumption of the law is that payment was made to the last indorser, or at his instance. The payment so evidenced was for the consideration of the jury, that they might say whether it showed a payment of the mortgage indebtedness, or its reduction pro tanto. This evidence, not satisfactorily explained to the jury by the plaintiff, was in the nature of a receipt of payment by the mortgagor to the mortgagee of $108.87, which the defendant would be entitled to have the jury consider in reduction of his liability for damages for the purchase of that bale of cotton.
If other reason was necessary to justify the introduction of this evidence, it was that the check was given for one of the bales of cotton involved in the suit, and the evidence of its indorsement tended to show that plaintiff received a part of the proceeds of the converted bale of cotton, for which defendant should not suffer in damages. A plaintiff as mortgagee may not recover the proceeds of the sale of one of the bales of cotton, covered by his mortgage, from the purchaser, and at the same time hold the purchaser liable for its conversion in its sale and purchase from which he received the proceeds. This follows under the rule that if, before the trial, the plaintiff regains possession of his property, or a part thereof, for the conversion of which suit is instituted, the damages should be reduced to the extent of the value of such property so repossessed. Renfro's Adm'x v. Hughes, 69 Ala. 581; Gray v. Crocheron, 8 Port. 191; Stephenson v. Wright, 111 Ala. 579, 20 So. 622; King v. Franklin, 132 Ala. 559, 31 So. 467; Plummer v. Hardison, 6 Ala. App. 525, 60 So. 502; Semple v. Yielding, 16 Ala. App. 584, 80 So. 158.
For foregoing error, the judgment of the trial court is reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.