(77 South. 64)

#### ROY v. GREIL.

(5 Div. 223.)

(Court of Appeals of Alabama.

Nov. 13, 1917.)

.1. Evidence &wkey;>400(9) — Parol — Identification of Mortgages Referred to in Assignment.

Where a number of mortgages without particular description were assigned to plaintiff, testimony that the mortgage involved was included in. the assignment was properly received, being an identification of an instrument referred to in the written assignment and not a construction of the writing.

2. Money Received <&wkey;>7 — Actions — Right to Maintain.

Where plaintiff’s crop mortgage was first executed and duly recorded in the county where the crops were grown prior to the time defendant’s agent, under a subsequent mortgage, collected the proceeds of the crop, plaintiff, in equity and good conscience, is entitled to recover the proceeds of the crop from defendant and may maintain an action for money had and received.

3. Chattel Mortgages <&wkey;48 — Description —Sufficiency.

A ci’op mortgage, declaring that the mortgagee shall have a lien on the crops of cotton raised by the mortgagor on the “Greek Place” in a named county or any other place in the county, is not bad for indefiniteness.

4. Chattel Mortgages <&wkey;>203 — Assignment — Validity—Effect.

Though a written assignment of a crop mortgage was insufficient to carry the legal title, yet where the mortgage and a note secured thereby were delivered to the assignee he took an equitable title.

5. Money Received <&wkey;>7 — Actions — Right to Maintain.

One having an equitable title to a crop mortgage may maintain an action for money had and received against a junior lienor who collected the entire proceeds of the crop.

Appeal from' Circuit Court, Elmore County; W. AV. Pearson, Judge.

Action by Meyer L. Greil against J. D. Roy. From a judgment for plaintiff, defendant appeals.

Affirmed.

W. A. Gunter, of Montgomery, for appellant. Rushton, Williams. *&*Crenshaw, of Montgomery, for appellee.

BRICKEN, J.

The action is for conversion and for money had and received. The bill of exceptions shows that:

> “The plaintiff (appellee) introduced evidence tending to prove that one Hilliard Motley, a negro, on the 10th day of April, 1913, executed a mortgage to one Adolph Abraham, * * *

> said mortgage being on the crops of cotton raised by said Motley on the .‘Creek Place’ in Autauga county, or any other place in said county, during the year 1913.”

The law day of this mortgage was October 1, 1913. In May, 1913, Abraham assigned and delivered this mortgage to one Forbes, and on the same day Forbes assigned and delivered the said mortgage to the appellee. The mortgage was duly recorded in Autauga county on May 29, 1913. In the fall of 1913, appellant’s agent collected from the tenant Motley the proceeds of the crop raised by him on the “Nunn Place,” amounting to $261.88, all of which he turned over to the appellant. This suit is for that amount, the amount of the mortgage indebtedness due appellee by Motley being $500.

In April, 1913, it appears that Motley executed another mortgage to Abraham to secure a note due November 1, 1913. This mortgage was never recorded, but was acquired by the appellant; this mortgage covered Motley’s crop on the “Nunn Place” or “any other place in said county.” The mortgage was headed, “State of Alabama, Montgomery County,” and, while counsel for both parties appear to assume that the mortgage covered the crop to be raised on the “Nunn Place” in Autauga county, the mortgage itself indicates that the crop therein mortgaged was to be raised in Montgomery county. It also appears that there was a “Nunn Place” in Autauga county; but whether there was another “Nunn Place” in Montgomery county is not shown by the record.

When Abraham transferred the mortgage to Forbes, he executed an instrument in writing in words and figures as follows:

> “Now, therefore, in consideration of the promises, and the sum of five dollars to me this day in hand paid by the said A. G. Forbes, I do hereby transfer, assign and set over to the said A. G. Forbes those certain notes and mortgages executed by the persons hereinafter recorded,- and which were held by me, but delivered contemporaneously herewith to the said A. G. Forbes” — following which were the names of 68 persons, among which was Hilliard Motley.

[1] Over appellant’s objection, the xilaintiff in the court below was permitted to ask. the witness Teasley “if the mortgage of Motley to Abraham, offered in evidence by the plaintiff, was included in the list of collaterals transferred by Abraham to Forbes, in the instrument above mentioned.” In this there was no error. This was not a construction of the writing, as contended by the appellant, but the identification of an instrument referred to in the writing, hut not particularly described therein. Harper v. Columbus Factory, 35 Ala. 127. In its general' charge, the court instructed the jury that:

> “If plaintiff’s mortgage was executed by Motley, and bore a previous date to that of 'defendant, plaintiff was entitled to recover.” .

This excerpt is all of the court’s charge that is set out in the record, and is not a compliance with the requirements of the act approved September 25, 1915 (Acts 1915, p. 815).

Axipellee urges upon us that, in such a case, *we*must assume that the oral charge, when construed as a whole, was free from error. It is not necessary to decide this question, for the reasons presently stated; hut we will suggest that counsel cannot err by seeing that the transcrixit filed in this court substantially complies with the provision of the statute above referred to.

[2] The evidence was in conflict as to whether or not the mortgage held by plaintiff was ever executed by Motley; but if it *227was executed, and tlie jury found that it was, it was executed prior to the mortgage held by the defendant, and was duly recorded in the county where the crops were grown prior to the time the defendant’s agent collected the entire proceeds of this crop and turned the money over to the defendant. It is therefore clear that the plaintiff in equity and good conscience was entitled to recover the amount of the proceeds of the crop from the defendant, and that an action for money had and received was the appropriate remedy for him to pursue.

[3] The appellant urges that the description of the crop in appellee’s mortgage is too indefinite, and for that reason the appellant was not entitled to recover. This contention has been disposed of adversely to appellant in the following eases: Smith v. Fields, 79 Ala. 335; Hamilton v. Maas, 77 Ala. 283; Woods v. Rose, 135 Ala. 297, 33 South. 41; and Connally v. Spragins, 66 Ala. 258.

[4, 5] It is unnecessary to decide whether the alleged assignment executed by Abraham, as above set out, was a legal assignment, in the sense that it vested the legal title to the property described in the mortgage in Forbes. The delivery of the note and mortgage, under the circumstances herein set out, conveyed the equitable title to the plaintiff. This was sufficient to enable him to maintain an action for money had and received. First Nat. Bank of Gadsden v. Sproull, 105 Ala. 275, 16 South. 879; Merrill v. Brantley, 133 Ala. 537, 31 South. 847; P. & M. Bank v. Tunstall, 72 Ala. 142.

. The rulings of the trial court appear to be free from error, and its judgment is affirmed.

Affirmed.