Opinion
8 Div. 595.
October 11, 1934. Rehearing Denied November 8, 1934.
Appeal from Circuit Court, Lawrence County; W. W. Callahan, Judge.
Lynne Lynne, of Decatur, for appellant.
It was not proper for the court to frame the issue as was done in this case; the proper issue is for the plaintiff to allege that he has the legal title to the property in suit and the right of immediate possession. Keyser v. Maas, 111 Ala. 394, 21 So. 346. By interposing her claim in pursuance of section 7403, Code, claimant did not subject herself to a judgment for the recovery of the property as would have been recoverable against the original defendant. Shreve-Milligan v. Pelham, 6 Ala. App. 262, 60 So. 516, 517. Plaintiff had no right to institute this action, since its right of possession was postponed to the due date of the mortgage, unless it appeared that the mortgaged property was sold, traded, or moved out of the country. A removal to which the mortgagor did not consent does not constitute a breach of the stipulation not to sell, remove, or dispose of the mortgaged property. 11 C. J. 554; Cochrane v. Boncher, 3 Ont. 462. A father may permit his child to labor for his own benefit and thereby relinquish all claim to his earnings. Godfrey v. Hays, 6 Ala. 501, 41 Am. Dec. 58; Lyon v. Bolling, 14 Ala. 753, 48 Am. Dec. 122. Such relinquishment may be implied from circumstances. Benziger v. Miller, 50 Ala. 206. The earnings of claimant are her separate property, and she has full legal capacity to contract with tenants for the cultivation of crops. Code. 1923, §§ 8262, 8267.
R. L. Almon, of Moulton, for appellee.
The issue was properly framed (Code, §§ 7403, 10387); but, if not, appellant failed to object and thereby waived any irregularity by joining issue on the allegation. Marbury Lumber Co. v. Westbrook, 121 Ala. 179, 25 So. 914; Breitling v. Marx, 123 Ala. 222, 26 So. 203. Even though appellant contends she came in under section 7403, when in fact she came in voluntarily after original defendant suggested her as claimant, as provided by section 10387, she thereby subjected herself to any judgment that could have been rendered against original defendant. Carleton v. Kimbrough, 150 Ala. 618, 43 So. 817; Slaughter v. Webster, 194 Ala. 642, 70 So. 128; Carleton v. Kimbrough, 150 Ala. 618, 43 So. 817; Slaughter v. Webster, 194 Ala. 642, 70 So. 128. The mortgage contained an acceleration clause, in event of sale or removal, which is valid. Woodard v. Elrod, 154 Ala. 340, 45 So. 647; 11 C. J. 554; 5 R. C. L. 461. Earnings of an infant, not emancipated, may be subjected to payment of the father's debt. Donegan v. Davis, 66 Ala. 362.
The Citizens' Bank, on October 6, 1932, sued J. W. Watkins in detinue for recovery of personalty consisting of farm products. On October 12, 1932, J. W. Watkins filed a disclaimer as to the property sued for, and made the affidavit that Clem C. Watkins claims the same, suggesting she be required on notice to come in and defend the suit, if she does not do so voluntarily, all in accordance with section 10387, Code 1923.
The day following, Clem C. Watkins made affidavit and bond for the property, the bond being conditioned, as provided by the above-noted Code section, and the property was delivered to her.
We are persuaded the trial court properly treated the case as one in which the claimant became a substituted defendant under section 10387, Code, notwithstanding a reference in the bond to section 7403, which may properly be considered as surplusage. Carleton v. Kimbrough, 150 Ala. 618, 43 So. 817; Slaughter v. Webster, 194 Ala. 642, 70 So. 128.
The argument against the form of the judgment is rested upon the contrary theory that the claim suit is under section 7403, Code, and is without merit.
Plaintiff's claim was by mortgage executed January 11, 1932, on the crop to be grown during that year. The land was that of the mortgagor, but he insists that in December, 1931, he turned over everything to his wife, claimant here, and their minor son, to make what they could out of it, and that he, himself, was insolvent and had nothing.
The trial court saw and heard the witnesses, and was in better position to judge the good faith of the transaction. Upon a consideration of all the proof, we think it justified a reasonable inference that this arrangement was but a mere subterfuge, and that the property was in fact that of the mortgagor.
We are also of the opinion that the proof as to the removal and sale of the bales of cotton justified the court in the conclusion that the mortgage maturity had been thus accelerated, the mortgage expressly so providing. 11 Corpus Juris, 553, 554; Woodard v. Elrod, 154 Ala. 340, 45 So. 647.
The loss of the original mortgage was sufficiently established to justify the use of the record thereof in evidence, and, indeed, we find no objection based upon that ground.
Upon original consideration of the cause we were of the opinion that the return of the sheriff showing a delivery of ungathered cotton to claimant of six hundred pounds was a clerical error. But upon more mature deliberation, the conclusion is reached that the record before us does not justify such a result, and that the judgment fixing this amount at sixteen hundred pounds is erroneous and should be here corrected, so as to read six hundred pounds, and as thus corrected the judgment should be affirmed.
We do not think, under the circumstances presented by this record, that this correction should work any change as to the taxation of costs.
We find no reversible error. Let the judgment be corrected, as above indicated, and as here corrected be affirmed.
Corrected and affirmed.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.