Citations
- 2 S.W.2d 356
Full opinion text
HIGGINS, J.
The El Paso National Bank brought this suit against Seth B. Orndorff, as maker, and E. M. Whitaker, as indorser, of a promissory note dated March 26, 192.5, in the principal sum of $2,500, payable to the order of Whitaker, executed by Orndorff and his wife, Mattie Dee Orndorff.
Whitaker vouched in the American Trust & Savings Bank and asked for judgment over against it.
The case was tried without a jury and judgment rendered in favor of the plaintiff against Orndorff and Whitaker for the balance of $2,651.92, due upon the note and in favor of Whitaker for like, amount over against the American Trust & Savings Bank, from which the latter prosecutes this writ of error, naming Whitaker only as the party adversely interested.
In the early part of 1924 Whitaker and the Orndorffs acquired jointly a tract of land in Dona Ana county, N. M., known as the Juanita or Shalem ranch, Seth Orndorff owning a one-half interest, Mrs. Orndorff and Whitaker each owning a one-fourth interest. In 1924 and 1925 the land was cultivated in cotton by Seth Orndorff and H. W. Pickard, as partners. In 1924 Whitaker received one-fourth'of the cotton grown upon his interest in the land as rent, and was t,o receive the same rental in 1925.
On February 18, 1925, Orndorff & Pickard executed a mortgage in favor of the American Trust & Savings Bank (hereinafter referred to as the bank) upon all the cotton to be grown by them upon the land in 1925, to secure the payment of two notes of the mortgagors in favor of the bank, each in the principal sum of $5,000, of even date with the mortgage, due November 1, 1925. The mortgage also secured any further and additional sum or sums that might be thereafter advanced by the mortgagee up to and not exceeding the sum of $20,000.
At that time Orndorff 'was negotiating with Whitaker for the purchase of the latter’s interest in the land and expected to purchase same, of which fact the bank was advised.
On March 26, 1925, Whitaker conveyed his one-fourth interest in the land to Mrs. Orn-dorff. Under the law of New Mexico, the presumption is that the title was vested in Mrs. Orndorff as her separate property. Extrinsic evidence of the intention of Seth Orn-dorff is that it was in fact so'intended.
In part payment for the land Orndorff and wife executed the note above mentioned. Its payment was secured by a “mortgage deed” upon the land conveyed executed by Orndorff and wife', and also by a mortgage upon an undivided' one-sixteenth interest in all cotton and grain grown upon the Shalem land in 1925. The mortgage deed and chattel mortgage bore even date with the conveyance from Whitaker to Mrs. Orndorff. This chattel mortgage was forthwith duly registered in Dona Ana county, N. M. The Orn-dorff & Pickard mortgage to the bank previously had been duly registered in said county.
It is impractical to consider and discuss in detail the many, assignments and propositions presented by plaintiff in error. Nor is it necessary to do so for the proper disposition of the writ of error is controlled by two primary questions, the first of which relates to the validity of the mortgage taken by Whitaker from Orndorff and wife upon one-sixteenth of the cotton grown in 1925, upon the Shalem land, and its priority over the mortgage taken by the bank ’from Orndorff & Pickard upon all the cotton grown in 1925, upon the same land.
The opinion of Justice Speer in Bowyer v. Beardon (Tex. Com. App.) 291 S. W. 219, is decisive of the validity of the mortgage taken by Whitaker and, in connection with other well-settled principles of - law, establishes its priority. The facts in the case cited were complicated. It is sufficient to say there was involved the validity of a mortgage given by á landlord upon a portion of an unma-tured crop, which portion, under the terms of the rental contract, was to become his absolutely.
After referring to the rule that a tenant may mortgage his interest in an unplanted crop, Justice Speer said: