
    Maybank v. Lumpkin.
    Trover, Case and Assumpsit.
    
    (Decided November 7, 1914.
    66 South. 584.)
    1. Mortgages; Landlord’s Lien; Priority. — Where a tenant executed a chattel mortgage on a crop and then contracted with a cropper to raise a crop on shares on part of the land, the tenant owned the crop subject to the cropper’s lien provided by section 4743, Code 1907, which lien was superior to the mortgage as to the cropper’s interest in the crop.
    2. Same. — Where a part of a tenant’s crop was raised by a son of the tenant without a cropping contract, the entire crop so raised was subject to a mortgage executed by the tenant on his entire crop.
    3. Same; Minors; Evidence. — On the issue as to whether a cropping contract was executed between a tenant and his son so as to relieve the son’s share of the crop from the lien of the tenant’s mortgagee, evidence that the son was a minor was admissible in determining whether such an agreement existed.
    
      4. Appeal and Error; Harmless Error; Pleadings. — Where a party receives the full benefit both as to proof and the court’s charge, under the plea of the general issue that he would have received under his special plea, it is harmless error to sustain demurrer to such special plea.
    Appeal from Anniston City Court.
    Heard before Hon. Thomas W. Coleman, Jr.
    Action by J. H. B. Lumpkin against T. D. Maybank in trover, case, and assumpsit. Judgment for plaintiff, and defendant appeals. Transferred from- tbe Court of Appeals under Acts 1911, p. 449, § 6.
    Affirmed.
    Tbe complaint alleges tbe execution to Ingram & Co., by W. R. Patty, on December 3, 1910, a mortgage conveying to said Ingram & Co., tbe entire crops of corn, cotton, etc., and all other crops that tbe said W. R. Patty raised or caused to be raised during tbe year 1913 on any lands in Calboun county, also another mortgage executed January 9, 1911, by and between the same parties, with tbe same securities, and alleges that at tbe time of tbe execution of tbe mortgage that said Patty bad leased a certain farm in Calboun county, tbe property of Mrs. Mattie E. Lumpkin, for tbe years 1911, 1912, and 1913, and that during tbe year 1913 tbe said Patty raised or caused to be raised on said land in Calboun county a crop of cotton, and that defendant received on tbe dates set out in tbe complaint 8 bales of this cotton, and that on December 15, 1911, tbe said Ingram & Co. transferred, for a valid consideration, tbe mortgages and debts thereby secured to plaintiff, and that said mortgages and said debts are now due, and have been tbe property of plaintiff continuously since said December 15, 1911; that defendant received and diverted tbe cotton to bis own use, and thereby destroyed plaintiff’s lien under tbe said mortgages, and rendered impossible the enforcement of plaintiff’s lien on said -coton. Tbe second count is like unto tbe first, as is tbe third and fourth. Tbe sixth count is for money bad and received for tbe use of plaintiff. Tbe complaint was afterwards amended to show tbe proper recordation of said mortgages in tbe office of tbe judge of probate of Calhoun county, and also to show that tbe lease mentioned in tbe complaint bad been taken by said Patty before tbe execution of said mortgage to Ingram & Co. Tbe defense set up, among others, was that tbe cotton alleged to bave been received and converted was grown or raised by one Andrew Patty, under an agreement between him and W. B. Patty, whereby said W. R. Patty furnished tbe land and teams to cultivate it, and said Andrew Patty furnished tbe labor to cultivate said land, with tbe stipulation to divide tbe crop share and share alike, and that said Andrew Patty sold tbe cotton so raised under said agreement, and paid, of caused to be paid, to plaintiff one-balf of tbe proceeds of said sale or sales, and plaintiff accepted tbe same, being a portion or part thereof realized from tbe sale of part of said cotton, which belonged to said W. R. Patty under said agreement. Tbe third plea alleges these facts, and adds that tbe said Andrew Patty cultivated said lands and raised and gathered tbe crop of cotton thereon, of which tbe cotton alleged to bave been received and converted by defendant was a part, and that plaintiff, with knowledge or notice of these facts, accepted and received, and still bolds, or has converted to bis own use, one-balf of tbe proceeds of said coton sold by said Andrew Patty to defendant; wherefore defendant says that plaintiff was estopped to maintain this action. 'Plea A sets np the statute of frauds, in that only a verbal agreement had.been made with Mrs. Lumpkin for the rent of the place for the years 1911, 1912, and 1913, and that said Patty had only the verbal agreement for the lease at the time the mortgages were executed.
    James F. Matthews, for appellant.
    Knox, Acker, Dixon & Sterne, for appellee.
   ANDERSON, C. J.

The plaintiff in this case, Avhile the husband of the landlady and owner of the land, did not seek a recovery under a landlord’s lien, but as the assignee of mortgages executed by W. R. Patty to Ingram & Co., and which had been duly recorded. These mortgages conveyed all right, title, or interest in the crop that the said W. R. Patty had in same, Avhether he greAV the same as tenant or as proprietor, and the plaintiff was entitled to recover so much of the value of same as Avas sufficient to satisfy any unpaid balance due upon his mortgages. It matters not whether the lease was Avithin or Avithout the statute of frauds, or Avhether or not the plaintiff had the right to testify to transactions with W. R. Patty, since deceased, as the one fact stands undisputed, and is established by the defendant’s testimony, that W. R. Patty was the owner of the crop and in control of the land in 1913, the year the cotton in controversy was grown; and the sole question to be determined is Avhether or not the mortgages covered all of the crop or were subordinate to the interest therein claimed by Andrew Patty, the son of W. R. Patty, under an alleged agreement between them before the crop was planted, wherein the elder Patty furnished the land and team, and Andrew Patty the labor.

If this claim was true, W. R. Patty owned the crop, but it was subject to the lien of Andrew Patty under section 4743 of the Code of 1907, and which was superior to the mortgage lien as to his part of the crop.

On the other hand, if this agreement was not made, the entire crop was subject to the plaintiff’s mortgage, and this issue was fairly and clearly submitted to the jury, who found that no such agreement existed. It-, may also be true, that Andrew Patty and his mother testified to the existence of the contract, but there were sufficient facts and circumstances to create a contrary inference and to make it a question for the jury; hence there was no error in refusing the general charge requested by the defendant.

There was no reversible error in sustaining the plaintiff’s demurrer to defendant’s special plea 3; for, whetha good plea or not, the defendant got the full benefit of same under the general issue, both as to proof, and in the charge of the court.

The age of Andrew Patty was a legitimate question of inquiry, in determining whether or not there was such an agreement as he attempted to show between himself and his father. While not conclusive on him, nor prohibitive of the contract, if he was a minor, yet the fact that he was a minor and living with his father was a circumstance for the jury, in determining whether he was cultivating the crop for his father as a son and member of the family, or under an independent contract such as he claims was in existence.

The judgment of the city court is affirmed.

Affirmed.

Mayfield, Somerville, and Gardner, JJ., concur. .  