Opinion
4 Div. 658.
June 9, 1932.
Appeal from Circuit Court, Geneva County; H. A. Pearce, Judge.
H. G. Tiller, of Geneva, and Farmer, Merrill Farmer, of Dothan, for appellant.
Up until the time of the foreclosure of its mortgage, appellee did nothing to oust the mortgagor from the possession of the land. The mortgagor and the tenants holding under him were, therefore, tenants at will of appellee and entitled to emblements. Code 1923, § 8796; Welsh v. Phillips, 54 Ala. 314, 25 Am. Rep. 679; Sadler v. Jefferson, 143 Ala. 669, 39 So. 380; Lamar v. Johnson, 16 Ala. App. 648, 81 So. 140; Hughes T. S. Co. v. Carr, 203 Ala. 469, 83 So. 472. A tenancy at will may be terminated at any time by either party by ten days' notice in writing. A tenancy at sufferance can be terminated at any time without any notice whatever. Therefore, when appellee served notice to quit the possession, it thereby admitted the relationship between it and the parties in possession was that of a tenancy at will. Code 1923, § 8797; Bush v. Fuller, 173 Ala. 511, 55 So. 1000. The mortgagor in possession of mortgaged lands has such interest in the lands as that he could mortgage the crops to be grown thereon. Metcalf v. Clemmons-Powell Co., 200 Ala. 243, 76 So. 9; Heard v. Heard, 181 Ala. 230, 61 So. 343; Field v. Karter, 121 Ala. 329, 25 So. 800; Buchmann v. Callahan, 222 Ala. 240, 131 So. 799. Where the relationship of landlord and tenant is created subsequent to the execution of the crop mortgage, the landlord's lien is subordinate to the rights of the chattel mortgage. Gillespie v. Bartlett, 211 Ala. 560, 100 So. 858; Mecklin v. Deming, 111 Ala. 159, 20 So. 507; Gatlin v. King, 22 Ala. App. 627, 118 So. 678; Herzfeld v. Hayne, 200 Ala. 615, 76 So. 973; Shows v. Brantley, 127 Ala. 352, 28 So. 716; Mack v. Beeland Bros., 21 Ala. App. 97, 105 So. 722; Lamar v. Johnson, 16 Ala. App. 648, 81 So. 140; Thompson v. Union W. Co., 110 Ala. 499, 18 So. 105. When appellee leased the lands to defendant and did not reserve to itself the crops then growing upon the lands, it thereby recognized the right and title of defendant to the crops then growing on said premises. Lamar v. Johnson, supra; Frishkorn v. Ogden, 16 Ala. App. 358, 77 So. 970.
B. W. Smith, of Samson, for appellee.
When appellee gave notice to the tenant, Barber, demanding possession, and Barber attorned to appellee, the relation of landlord and tenant was thereby created and the rental became for a fixed term. Hughes T. S. Co. v. Carr, 203 Ala. 469, 83 So. 472. Appellee, as holder of the mortgage and purchaser at the sale, was entitled to the reversion in the estate or lands in controversy and to the rents and profits for the year 1931, as the rents did not fall due until after the property was purchased by appellee. Tubb v. Fort, 58 Ala. 277; English v. Key, 39 Ala. 117; Walsh v. Bank of Moundville, 222 Ala. 164, 132 So. 52, 53. The execution and recordation of the mortgage to appellee was notice to all persons of the legal and equitable incidents thereof, and appellant cannot be heard to say it had no notice of the mortgage or that it might be foreclosed. The assignee of the rent note stands in the same position as the mortgagor. Walsh v. Bank of Moundville, supra; Federal Land Bank v. Wilson, 224 Ala. 491, 141 So. 539. Section 8797 of the Code has no application here. See Tiffany, Real Prop. p. 137.
We are persuaded the ruling of the trial court is fully sustained by the very recent case of Federal Land Bank v. Wilson (Ala. Sup.) 141 So. 539, 540, where the pertinent authorities (to which may be added Walsh v. Bank of Moundville, 222 Ala. 164, 132 So. 52) are cited and the decisive question here presented is fully discussed. The following excerpts from that opinion will here suffice and render unnecessary further discussion of the authorities:
"The execution and recordation of a mortgage of real estate carries notice to all persons of the legal and equitable incidents thereof; the nature of the title in both mortgagee and mortgagor; the right to the possession and the usufruct. * * *
"The mortgagor, remaining in possession of lands, either by virtue of stipulations entitling him so to do, or by grace of the mortgagee, is, as to all persons other than the mortgagee, the owner of the lands. He may cultivate same, or let it to tenants, and both may gather, remove, and make use of the crops as their own, even after default, unless and until the mortgagee has entered or made demand for possession. Metcalf v. Clemmons-Powers Co., 200 Ala. 243, 76 So. 9. The crop mortgage, under our statute, passes only the title of the mortgagor. He cannot deplete the security of the mortgage by passing a whole year's usufruct of the mortgaged property. Thompson Co. v. Union Warehouse Co., 110 Ala. 499, 18 So. 105.
"The holders of crop mortgages executed since January 1st of the year in which crops were grown in the instant case occupy no higher position than their mortgagor. * * *
"The purchaser at foreclosure sale may allow the occupant to remain on the lands undisturbed until the end of the year, demanding payment of rent. He, rather than the mortgagor-lessor or his assigns, is entitled on demand to the rents for the year. Buchmann v. Callahan, 222 Ala. 240, 131 So. 799.
"The result of our statute is to vest in the owner of the reversion, that is, the successor to the title of the mortgagor-lessor of lands with growing crops thereon, the right to rents, not the absolute ownership of the crops."
Plaintiff in this cause sought payment of rent only and no more. The foregoing excerpts from the Wilson Case, supra, are here directly applicable, and the principles therein recognized are controlling and lead to an affirmance of the judgment rendered. It is so ordered.
Affirmed.
ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur.