BOULDIN, J.

This is an action of trover for the conversion of a bale of cotton, brought by a mortgagee against a purchaser from the mortgagor. A count in detinue was added, but not litigated. One issue in the court below was the question of constructive notice to the purchaser by the record of the mortgage. The mortgage was recorded in Randolph county. The cotton was grown in that county, hauled over into Clay county, and there sold the same day. There was conflict in the evidence as to whether the mortgagor resided in Clay or Randolph at the time the mortgage was given and recorded.

To operate as constructive notice in another county, the mortgage must have been recorded in the county of the mortgagor's residence. Code 1907, § 3376.

Under the evidence this was an issue for the jury, and the burden of proof was on plaintiffs.

Charges Nos. 2, 3, and B, refused to plaintiffs, ignored this feature of the case, and were properly refused.

The chief controversy arises as to the right of the mortgagor to sell the bale of cotton and pass a good title as against the mortgage.

The cotton was grown and mortgaged by a tenant. His landlord had a lien for one-fourth as rents, and a lien for advances by becoming surety for the tenant upon a note given for a pair of mules to make the crop.

Homer Pitts, the tenant, as a witness for the defendants, testified that the landlord consented for him to sell the cotton, pay the rent, and apply the balance on the mule note when due; that the landlord was present and helped load the cotton on the wagon when it was hauled off and sold. Claudie Fuller, the landlord, testified that he gave no such consent, did not help load the cotton, was not present, and had no knowledge that it was being sold at the time. Both agree that the rent was paid.

The trial court gave the following charge for defendants:

"If the jury is reasonably satisfied from the evidence in this case that Claudie Fuller ever by words or acts consented to Homer Pitts selling said bale of cotton, you must find a verdict in favor of the defendants, W. B. Smith Sons."

This and other rulings bring under review the legal rights and duties of landlord, tenant, and mortgagee of crops.

A mortgage on a crop given after January 1st of the year in which it is grown on lands then rented by a tenant, passes the legal title to the mortgagee. As against the tenant, he has the right of possession according to the terms of the mortgage after the crop is gathered.

The landlord's lien for rent and advances is made paramount by statute. It is a law-created lien accompanied with restrictions upon the possession and control of the tenant. The tenant may not, without the landlord's consent, remove the crop from the premises, nor otherwise dispose of same, without subjecting his crops to attachment. He cannot by his mortgage pass any greater right than he has as against the landlord.

In the very recent case of Gillespie v. Bartlett Byers, 100 So. 858, on consideration by the full court, the majority held that the tenant may turn over to his landlord so much of the crop as necessary to satisfy the lien for rent and advances, and vest the landlord with the title so as to defeat an action of detinue by the tenant's mortgagee. The effect is to hold that the landlord and tenant, by virtue of our landlord and tenant statutes, may apply the crop in good faith to the satisfaction of the lien, may do for themselves what the law would do for them, and so cut off the mortgage by the tenant. We reaffirm that ruling. Any other construction would render the tenant powerless to pay his landlord out of the crop, and subject his entire crop to the diminishing process of court proceedings for that purpose. In Belser v. Youngblood, 103 Ala. 545, 15 So. 863, it was held in trover that the tenant need not surrender to the landlord the actual possession of the crop, but if a portion is selected and set apart for payment of rents and advances, and the ten. ant by the direction of the landlord markets the same, and pays over the proceeds to the landlord, the purchaser takes a good title against the tenant's mortgagee. The landlord is considered in constructive possession in such case, and the purchaser succeeds to his title. See, also, Mutual Warehouse Co. v. Hamilton, 171 Ala. 82, 55 So. 116, Keith v. Ham, 89 Ala. 590, 7 So. 234.

The charge before us declares that the purchaser from the tenant takes a good title as against the mortgage if the landlord "consented" to the sale. Mere consent of the landlord to a sale by the tenant, without more, is a mere waiver of the landlord's lien. It is simply released, and the tenant proceeds in his own right to sell it. Foxworth v. Brown Bros., 120 Ala. 59, 24 So. 1.

Such a sale cannot affect the rights of the mortgagee. A purchaser, with actual or constructive notice of the mortgage, takes no title which will defeat an action of detinue or trover by the mortgagee.

The charge was entirely too broad. The sale must not only have been made by the consent of the landlord, but on his account, and for the purpose of satisfying the lien.

The evidence was in such conflict, and all the circumstances were such, that it became a question for the jury, whether the landlord by word or act consented to the sale in the sense of a mere waiver of his lien.

The giving of the above charge was error.

The evidence for defendants tending to show the purchase of the mules, the note given therefor, that the landlord was bound thereon, that the balance of proceeds of this bale of cotton, after payment of rents, was to be held for payment on that note, was properly received. This was pertinent to show a lawful sale of the cotton for the benefit of the landlord, giving a good title to the purchaser.

Plaintiffs' refused charge No. 1 should have been given.

The judgment of the court below is reversed, and the cause remanded.

Reversed and remanded.

All the Justices concur.

SOMERVILLE, J., concurs in the result only.