The appellees Bartlett Byers sued T. W. Ross and W. D. Ross in detinue for three bales of cotton, and a quantity of corn and fodder. Plaintiffs' claim is based on a mortgage executed to them by defendants on March 17, 1921, securing a debt of $1,000, which conveyed to plaintiffs the legal title to this property, and which was in default on November 21, 1921.
The property was seized under a writ of detinue, and thereupon the appellant, W. T. Gillespie, intervened as claimant, filing his affidavit and bond as required by law, setting up that this property was raised on his land during the year 1921, and was delivered to him by W. D. Ross, defendant, before its seizure under process; his claim being based on "a landlord's lien for rent."
Thereupon an issue was made up; plaintiffs alleging that they had the legal title to the property in suit and the right of immediate possession. This was the proper issue, and the burden of proof was on the plaintiffs. Keyser v Maas, 111 Ala. 390,21 So. 346. This constitutes a new and collateral cause which —
"stands for trial between plaintiff and claimant as though they were original parties plaintiff and defendant, respectively, to a statutory action of detinue — an action involving, not the right to subject property to the satisfaction of a debt as in case of a levy of attachment or execution, but only the legal title and the right of possession of specific property." Slaughter v. Webster, 194 Ala. 642, 644, 70 So. 128, 129; Hesk v. Ellis, 200 Ala. 16, 75 So. 329.
Plaintiffs offered in evidence the chattel mortgage, as above described, after showing by T. W. Ross that he and his son, W. D. Ross, executed the mortgage. The mortgage was attested by one witness, and claimant objected to its introduction in evidence on the ground "that its execution had not been proven," which objection was overruled. Section 4006 of the Code provides that —
"The execution of any instrument of writing attested by witnesses may be proved by the testimony of the maker thereof, without producing or accounting for the absence of the attesting witnesses."
This changes the common-law rule which required that proof of any attested instrument should be made by the attesting witness, or that otherwise his absence should first be accounted for. Ellerson v. State, 69 Ala. 1; Russell v. Walker,73 Ala. 315; Askew v. Steiner, 76 Ala. 218.
Where an attested instrument is executed by more than one grantor or maker, and its validity and effect depend upon their joint execution — the attesting witness not being produced or accounted for — the testimony of one of the parties that he and the other or others signed it is not sufficient to prove it. Stamphill v. Bullen, 121 Ala. 250, 25 So. 928. But the chattel mortgage here exhibited was clearly a joint and several instrument, and the testimony of T. W. Ross that he executed it was sufficient proof to admit it as his own act and deed, and to give it effect accordingly. It of course did not render it effective as the proven act and deed of his comortgagor, W. D. Ross. But, since the property here involved was the property of T. W. Ross, W D. Ross' execution of the mortgage, vel non, was wholly immaterial. Moreover, even if available, the objection should have been made to the witness' testimony. A general objection to the mortgage that "its execution had not been proven" was not sufficient. Houston Nat. Bank v. Edmonson,200 Ala. 120, 75 So. 568. The mortgage was properly admitted.
The issue was upon the legal title and right to possession of the chattels sued for, and plaintiffs' legal title necessarily prevailed over the landlord's lien upon which *Page 562 claimant relied, whether the lien was acquired before or after the mortgage was executed to plaintiffs. Houston Nat. Bank v. Edmonson, 200 Ala. 120, 75 So. 568. Nor could that result be affected by the fact that the property was delivered by the mortgagor to claimant for the satisfaction of his rent claim after plaintiffs' legal title was acquired. Id.
This is the view of the writer and of Gardner, J. A majority of the court, however, are of the opinion that, if the claimant's lien antedated the plaintiffs' mortgage, a delivery of the crops to the landlord by the tenant gave to the landlord a legal title or right of possession superior to that of the mortgagee. But all of the justices are agreed that under the evidence before the trial judge he could have properly found that the relation of landlord and tenant did not begin until Ross reconveyed the land to the claimant, Gillespie, and executed to him his! rent note, on July 23, 1921. On that theory of the evidence, plaintiffs' mortgage was superior to the claimant's lien subsequently acquired, and the judgment so declaring will not be disturbed.
The judgment rendered was proper in form and in substance, and was, indeed, the only judgment that could have been rendered in a detinue suit. Slaughter v. Webster, 194 Ala. 642,644, 70 So. 129.
We find no error in the record, and the judgment will be affirmed.
Affirmed.
All the Justices concur.
On Rehearing. Counsel for appellant is in error in his assumption that the evidence shows without dispute that Ross became the tenant of Gillespie, either presently or potentially, by contractual agreement between them made about the first of the year 1921.
Ross himself testified that —
"He was in possession and owned this land in 1920 and 1921." (Italics supplied.)
He further stated:
"That he did not really know just when he rented this place from Dr. Gillespie, because he fell down that fall on his payments; that he told Dr. Gillespie that he would just stay there; that he was trying to get some money; that if he got the money he would make the payment, and if he didn't he would deed the place back to him; that he fell down on the payment and deeded the place back."
On cross-examination by defendant, the witness further said:
"That he had a conversation with Dr. Gillespie about this defaulted payment along the latter part of 1920 or the first part of 1921. That he told Dr. Gillespie in that conversation that if he failed to get the money the only thing be could do would be to deed the land back to him and rent it, that he wanted to stay there that year, and Gillespie told him just to stay ahead, and, 'if I failed to get the money, we would have to make some other arrangements.' I then told him that if I failed to get the money I would pay him rent on this land for the year 1921, and he told me that he would give me a chance on it, to try it."
This testimony falls short of showing with reasonable clearness that Ross then and there contracted with Gillespie to become his tenant for the year 1921, automatically upon his failure to get the money needed to pay off the mortgage debt; and, coupled with the conduct of the parties in the reconveyance of the land, and the execution of a rent note, in July, 1921 it supports a reasonable inference that they had no intention of initiating the relation of landlord and tenant until they took that action in July, and that in the meantime they were simply leaving matters in statu quo by an indefinite extension of the mortgage debt. This view is confirmed by the absence of any understanding (under Ross' testimony) as to the amount of rent to be paid if they should in future "make other arrangements," or as to the time when such arrangements were to be made.
It is true that Gillespie's testimony is in sharp conflict with Ross'; for Gillespie testified that when Ross came to him about the first of the year (1921), Ross then said that he had failed to pay, and would therefore deed the place back and rent it, to which he (Gillespie) agreed. But the trial court was not bound to believe that version of the transaction, and may well have accepted the other.
In urging that under Act Sept. 25, 1915 (Gen. Sess. Acts 1915, p 824), this court is required to review judgments of the trial court, sitting without a jury. "with no presumption in favor of the finding of the trial court on the evidence," counsel overlooks the fact that this court has uniformly held that this provision can have no application where the evidence was given ore tenus, or partly so, and the trial court has the advantage of seeing and hearing the witnesses. In such cases —
"this court will not disturb the conclusion unless it is plainly and palpably contrary to the weight of the evidence." Hackett v. Cash, 196 Ala. 405, 72 So. 52; Halle v. Brooks,209 Ala. 486, 96 So. 341, citing many cases.
It is difficult to see how the statement by Ross that, when he got a deed to this land from Gillespie, he "made Gillespie a mortgage on the land," which was in default in the fall of 1920, can affect the rights of the parties in this proceeding. This mortgage, if it in fact existed, was not offered in evidence, and was not before the court; and there was absolutely nothing in the evidence to show that it was an instrument containing apt words of legal conveyance, nor to *Page 563 show that it was executed in the manner and form required by law for the conveyance of the legal title, and the trial court was not authorized to presume that it was effective for such a purpose. It is to be observed, also, that it does not appear that it was recorded, nor that plaintiffs, who were purchasers of the growing crops for value, had any actual notice of the existence of such an instrument.
These considerations effectually dispose of the argument of Gillespie's prior right, based upon his supposed right to the possession of the land as mortgagee of the legal title after default — a status which, as we have shown, finds no support in the evidence. The comparative status of Gillespie's landlord's lien is therefore not aided or improved by the predicate of a legal title to the land, carrying with it the right of possession, prior to the inception of the chattel mortgagees' title to the growing crops.
Our view of the evidence excludes the application of the principle announced in the cases of Waite v. Corbin, 109 Ala. 154,19 So. 505, and B. A. Mort. Co. v. Cody, 135 Ala. 622,33 So. 832, cited and relied on by counsel for appellant. In those cases there was a sale of the land on deferred payments, with a definite present stipulation that in case of default the purchaser should occupy as tenant, and be chargeable with a stipulated sum for rent, as from the date of the sale; and it was held that an intervening chattel mortgage on the crops would be subordinate to the landlord's lien created by the purchaser's subsequent default — a different situation from that of the instant case.
The application will be overruled.
All the Justices concur, except THOMAS, J., who dissents.