The plaintiff sued as mortgagee for the conversion of certain crops of cotton and corn acquired by the defendant from the Colemans, who were tenants of and raised the crops upon the land of Mrs. Atkins.
The plaintiff offered a note and mortgage executed by the Colemans and which had been duly acknowledged and recorded so as to make the same self-proving. The production of the mortgage and the note which it was given to secure in the possession of the creditor is prima facie evidence that the debt thereby secured is unpaid, in the absence of any indorsement or other marks on the papers indicating payment. 27 Cyc. p. 1399; Shippen v. Whittier, 117 Ill. 282, 7 N.E. 642. The case of Kinston v. Kelly, 200 Ala. 151, 75 So. 899, did not deal with this question; it involved a landlord's lien, and in order to establish the existence of a lien there had to be some proof of the existence of a debt for rent or advances. Here we are dealing with a note and mortgage, duly executed by the Colemans, reciting a consideration and in the possession of the creditor, and which are prima facie evidence of the existence of a debt. The trial court erred, therefore, in giving the general charge for the defendant, and the original opinion in this case is, to that extent, unsound.
The plaintiff, having made out a prima facie case, under his mortgage on the cotton and corn received from the Colemans by defendant, was entitled to a verdict unless the defendant showed a better claim or title to the property. This he attempted to do by connecting himself with Mrs. Atkins, the landlord, who had a paramount claim for rent and advances. As we understand the evidence, the first agreement between the defendant and Mrs. Atkins was not an assignment of her lien or an undertaking upon her part to advance the tenants through Windham, but was merely a waiver by her of the priority of her claim for rent if Windham would advance the said tenants. There was nothing in the proof to indicate a transfer or assignment at that time of her lien. Strickland v. Lesesne, 160 Ala. 213,49 So. 233. There was proof, however, from which the jury could infer that Mrs. Atkins subsequently wrote Windham to purchase the crop and credit it to the Colemans and which would operate as an assignment or release of her claim for rent, to wit, $90, and which the defendant could have used as a reduction or defense pro tanto against all the counts other than the one in detinue. There was also proof from which the jury could have inferred that after the Colemans gathered the crop they went to Mrs. Atkins and got from her an order to deliver the same to the defendant, and if this was intended by them as a delivery and surrender of the crop to her in recognition of her lien and was so considered and accepted by her, then her lien ripened into the legal title, and if the defendant purchased from or through her, he acquired the legal title and a defense to the count in detinue; but even if he acquired the legal title and could thereby defeat the count in detinue, he was answerable to the plaintiff under the other counts for all that he received in excess of what was due Mrs. Atkins, which was the rent, as there is no proof that she made the Colemans advances directly or through another.
The note that the defendant got from Mrs. Atkins agreeing to pay whatever the Colemans owed him after he had made the advances and after he had gotten the crop could not operate as advances made by Mrs. Atkins to the prejudice of this plaintiff.
The rehearing is granted; the judgment of affirmance is set aside: and the judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and SAYRE, GARDNER, and MILLER, JJ., concur.