ON REHEARING.
Hart, J.Upon further consideration of this case we are of the opinion that, under the terms of the mortgage, which guaranteed to the mortgagee that no member of the family of the mortgagor had or would have any interest or claim or lien on the property mortgaged, the mortgagor could not, as against the mortgagee, emancipate his minor son, at the same time retaining him as a member of his family and give him part of the crops embraced in. the mortgage for his services in helping to raise them. Such is the effect of a decision of the Alabama Court of Appeals in Hughes & Tidwell Supply Co. v. Bussey, 70 So. 997.
In that case the mortgage embraced “the entire crop of cotton * * * raised or to be raised by us (the mortgagors) or our family, during' the year 1912.” In discussing a precisely similar case to the present one, the court said:
“As against the plaintiff, to whom the father had thus mortgaged, not only the product of his own labor that might materialize in crops grown on the mentioned premises during the year 1912, but also the product of the labor of his minor son that might so materialize in crops grown on said premises during said year, the father could not subsequently make a valid agreement with the son whereby the crops resulting from the labor of the son on said premises during said year should become the son’s property to the exclusion of the plaintiff, when it appears, as it does from the evidence here, that the son remained during the year a member of his father’s family and was cared for as such and used his father’s property in making the crop.” •
It was urged that the holding was in conflict with a recent decision of the Supreme Court of Alabama in Maybank v. Lumpkin, 66 So. 584. In that case the court held that a father might, as against the mortgagee, emancipate his minor son after the execution of a mortgage and rent to him a part of the premises upon which the mortgaged crops were grown, so as to confer on the son, even as against the mortgagee, the title to that part of the crops the son might raise on the portion of the premises so rented to him. In that case, however, the mortgagor did not attempt to convey to the mortgagee the entire crop of his family.
In the case before us the effect of the mortgage was to embrace the crop grown by the mortgagor or any member of his family. Therefore it seems to us that the mortgagor could not, as against the mortgagee, emancipate his minor son, at the same time retaining him as a member of his family, and rent to him any part of the premises on which the crops mortgaged were to be grown, so as thereby to give the son a title superior to that of the motgagee to such part of the crops as the son might raise. It is admitted that the minor son in the case before us lived with his father as a member of his' family, and it is also shown that the food which he ate was purchased by the money obtained by executing the mortgage. The father, under such circumstances, being obliged to support his minor child, would be entitled to his services and to the product of his labor so long as he remained a member of his family. If the father had not seen fit to mortgage any crop which his minor son might grow, we think that he might have emancipated him and allowed him to work the crop in any way he might contract with any third person to do it.
In Holst v. Harmon, 26 So. 157, in an opinion rendered by Chief Justice McClellan, the .Supreme Court of Alabama held that a 'mortgage embracing all the crops grown by the mortgagor, 'or under his direction, on his plantation, includes cotton grown by the mortgagor and his sister, who was a member of his family, and who subsisted on the supplies furnished by the mortgagee under the mortgage.
It is true that there was proof in the case at bar tending to show that subsequently the cashier of the’bank agreed that the mortgagor might emancipate his son and make a contract with him to grow the crop, but this the cashier denies to be the case, and, when the terms of the mortgage to the contrary and the surrounding circumstances are considered, we do not think that the finding of the chancellor in favor of the mortgagee is against the preponderance of the evidence.
The result of our views is that a rehearing should be granted, and that the decree of the chancery court should be affirmed.