
    FIRST NAT. BANK OF FABENS v. AMERICAN TRUST & SAVINGS BANK OF EL PASO.
    (No. 2039.)
    Court of Civil Appeals of Texas. El Paso.
    Dec. 8, 1927.
    1. Chattel mortgages <&wkey; 12 — Mortgage on crop for current and succeeding years held valid.
    Mortgage on crop for current and succeeding years to be grown on definitely described tract of land owned by mortgagor, or in which he has interest, from which it can be reasonably inferred that it is within contemplation of parties that crops be planted and grown on premises by mortgagor during current and succeeding years, held, valid.
    2. Chattel mortgages <&wkey; 12 — Validity of crop mortgage for current and succeeding years held not affected by mortgagee’s refusal to finance mortgagor in succeeding year.
    Validity of mortgage given on crops for current and succeeding years held not affected by mortgagee’s action in refusing to finance mortgagor so that he could produce crop in succeeding year.
    3. Appeal and error <&wkey;l060(l) — Improper argument provoked by opposing counsel held not reversible error, if it could not affect jury’s finding cn only issue submitted.
    Argument of counsel provoked by opposing counsel, though improper, does not constitute reversible error where not inflammatory, and where it is not reasonable to suppose it could have in any wise affected finding of jury on only issue submitted.
    4. Chattel mortgages <&wkey;229 (3) — Testimony in crop mortgagee’s action against bank, that bank applying proceeds of crops on mortgagor’s debt would not have made loan except for mortgagor’s representation that mortgagee released mortgage, held inadmissible.
    In action by chattel mortgagee against bank which had applied value of mortgaged crop on debts due from mortgagor,' evidence that such bank would not have made loan to mortgagor except for his statement that plaintiff had released mortgage held inadmissible as being irrelevant to any issue in the case.
    Error from District Court, El Paso-County; P. R. Price, Judge.
    Action by the American Trust & Savings Bank of El Paso against the First National Bank of Pabens and others. Judgment for plaintiff, and the named defendant brings error.
    Affirmed.
    R. J. Channell, of El Paso, for plaintiff in error.
    W. M. Peticolas and J. D. Rasberry, both of El Paso, for defendant in error.
   HIGGINS, J.

The plaintiff in error and the defendant in error will be respectively designated as the Pabens Bank and the American Bank.

On January 24, 1925, A. D. Rose and wife executed a mortgage, which was duly recorded, upon “all our cotton and all other crops raised or to be raised, grown or to be grown, planted or to be planted, or caused to be raised, grown, or planted by‘us or those in our employ during the year 1925, and thereafter, upon eighty acres of land known as the Garnet King farm, located 1 ⅛ miles west of Clint, between the. two paved roads, in El Paso county, Texas,” to secure the payment of certain indebtedness of the mortgagors to the American Bank. On April, 8, 1926, Rose gave a mortgage upon his crop of cotton grown during 1926, upon 45 acres of the same land described in the other mortgage.

In 1925 the 80-aere tract was owned jointly by Rose and another. Subsequently the land was partitioned between them, Rose acquiring in severalty the 45 acres described in the second mortgage.

Eater this suit was filed by the American Bank against Rose and wife and the Pabens Bank to recover of Rose and wife a balance due upon their indebtedness to the American Bank, and against all defendants to foreclose the mortgage lien upon cotton grown upon the 45 acres in 1926. As against the Pabens bank, recovery was also sought for the value of certain cotton grown upon the 45 acres of land in 1926, alleged to have been sold and delivered by Rose to the Pabens Bank and the value thereof by such bank applied upon the debts of Rose to it.

The only issue submitted to the jury was whether the American Bank in January, 1926, agreed with Rose to release its mortgage in consideration of collateral security then deposited by Rose, as the defendants had pleaded. This issue was answered in the negative and judgment rendered in favor of the American bank. The Pabens Bank prosecutes this writ of error.

Its propositions are to the effect:

First. The mortgage of the American Bank, in so far as it affected the 1926 crop, was void for inadequacy of description.

2. The undisputed evidence having shown that Rose could not produce a crop in 1926 without being financed, and that the American Bank refused to finance him, and that no crop would have been produced except for the advances made by the Pabens Bank, its mortgage was superior to that of the American Bank.

Third. Where, as in this instance, the provision in the chattel mortgage for a lien upon future crops of succeeding years would result in the land lying idle and no crop being produced, such provision is contrary to public policy and is void.

Fourth. Improper argument to the jury on the part of counsel for the American Bank.

' Fifth. Error in refusing to permit the Pa-bens Bank to prove that while it made the loan to Rose and took his notes and chattel mortgage, he stated that the American Bank had released its mortgage, and that otherwise the Fabens Bank would not have made the loan.

In this state it is now too late to question the validity of a mortgage upon crops for the current and succeeding years to be grown upon a definitely described tract of land owned by the mortgagor, or in which he. has an interest, from which it can be reasonably inferred that it was within the contemplation of the parties that crops would be planted and grown upon the premises by the mortgagor during the current and succeeding years. Bowyer v. Beardon (Tex. Com. App.) 291 S. W. 219 Richardson v. Washington, 88 Tex. 339, 31 S, W. 614; South Texas Implement & Machine Co. v. Anahuac Canal Co. (Tex. Com. App.) 280 S. W. 521; Perkins v. Alexander (Tex. Civ. App.) 209 S. W. 789; Waters v. B. F. Ellington & Co. (Tex. Civ. App.) 289 S. W. 417; Colley v. H. L. Edwards & Co. (Tex. Civ. App.) 258 S. W. 191.

Counsel for plaintiff in error has cited no authority in which the validity 'of such mortgages is held to be affected by the circumstances referred to in the third proposition, or which holds that they will be subordinated to a second mortgage by the facts referred to in the second proposition. The mortgages being valid when executed, they remain so, unaffected by subsequent events and developments of that nature.

The 80 acres of land is definitely described in the mortgage given to the American Bank. Its identity is not in issue. The mortgage covered all of the cotton to be grown thereon in 1925 and succeeding years. There is no uncertainty as to the portion of the crop mortgaged. At the time of the mortgage Rose owned an undivided one-half interest in the land described.

Under these circumstances, the authorities cited establish beyond question the validity of the mortgage in favor of the American Bank upon the crop grown upon the land in 1926.

The distinguishing features of two of the cases cited by the Fabens Bank are shown in Justice Speers’ opinion in South Texas Implement & Machine Co. v. Anahuac Canal Co., supra, Richardson v. Washington, supra, supports the validity of the present mortgage. The distinguishing features of Prator v. Washington (Tex. Civ. App.) 277 S. W. 704, are so apparent ás to call for no comment.

The argument of counsel presents no error, in view of the previous argument of counsel for the Fabens Bank in reply to which it was made. If conceded to be improper, it is not reversible. It was not inflammatory, and it is not reasonable to suppose it could have in any wise affected the finding of the jury upon the only issue submitted.

The evidence referred to in the last proposition could not affect the rights of the-American Bank and was irrelevant to any issue in the case. It was properly excluded..

Affirmed. 
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