Presiding Judge BRICKEN and the writer both concur in the conclusion reached by Judge RICE and that the judgment must be reversed and one be here rendered. But we do not agree that the mortgage of the crops to be grown during the year 1931, which mortgage is dated January 9, 1931, and due and payable March 13, 1931, is a "nullity" as to the crops described in said mortgage. J. A. Ridley was the owner and in possession of the lands upon which the crops were to be grown, at the time he made the mortgage to the bank on January 9th. On January 14th he conveyed the land to his daughters and left the possession to them. Had Ridley cultivated the land, either by himself or tenant, the title to the crops would have been in the mortgagee and the due date of the mortgage could not affect its validity. That the facts in this case render necessary a judgment for appellees does not affect the legal principle here involved. We think the question is settled in Shows v. Brantley, 127 Ala. 352,28 So. 716; Pincard et al. v. Cassels, 195 Ala. 353,70 So. 153; Lamar v. Johnson, 16 Ala. App. 648, 81 So. 140.
We realize that section 9008, Code 1923, creates a fiction, but, where there is a potential interest in the mortgagor at the time of the giving of a mortgage, the title to such crops as are raised on the land by him or his tenants is in the mortgagee, regardless of the due date of the mortgage.