B. E. McKenzie executed a mortgage to Tundee, Chapm-an & Company upon the following property, among other, to-wit: “The entire crops -of cotton, corn, fodder, cotton seed, hay and all farm products 'he -may raise or cause to be raised or grown during the year 1903 on lands owned by Mrs. S. A. McKenzie and known as the “Tanner Place” in said county of Jefferson and State of Arkansas, or any other lands in said county of Jefferson or any other county which be -may cultivate or -cause to be cultivated during said year, or that may accrue t-o him as rent due by cotton, money or otherwise.”
McKenzie shipped twenty-four bales of cotton to J. H, Talbot & Company, commission merchants, to whom he was indebted. Shortly afterwards he died.
Tundee, Chapman & Company brought replevin for said twenty-four ba-les of cotton. Issue was made as to whether the property fell within the above-quoted terms of the mortgage. The court gave a peremptory instruction in the following language :
“The burden is ion the plaintiff to show by a preponderance of the evidence that the 24 bales of cotton, or some part thereof in controversy herein, was raised or caused to be raised by McKenzie during the year 1903, -or was received by him as rent *317for that year from his tenants, and also to prove the amount and value thereof; that is to say, the amount and value of so much of said cotton, if .any, as was recéived by him as or in lieu of rent from subtenants .and the amount and value of so much' thereof, if any, as was raised or caused to be raised by him, not including any cotton received by .him in payment of or for supplies of money, provisions or merchandise furnished by him, McKenzie, to his own tenants or to any other persons, not in his employ; and, there being no evidence in the record from which these facts can be ascertained, the jury is directed to find a verdict for the defendant.”
Was the court right in giving this instruction? To test the sufficiency of it, the testimony most strongly in favor of appellant alone’ should be considered, and from such testimony the following facts .are developed:
McKenzie was interested in numerous places in the year 1903. These were the “Tanner (or McKenzie) Place,” the “Hall Place,” the “Holmes Place,” the “Minor Place,” the “Baxter Place,” .and the “Nicks Place.” The Tanner, Hall and Holmes places he cáused to be planted directly. From the Minor, Baxter and Nicks places be was to receive cotton by reason of having furnished supplies to the tenants and paid their rents.. But in one way and another he controlled the crops grown upon these various places. The 24 bales came from the Hall, Holmes, Tanner and Minor places. This cotton received from these various places was upon several accounts. Some of it was received in payment of rent which McKenzie had paid for the tenant, and much of it was received in payment of supplies which McKenzie had furnished tenants, and part of it" undoubtedly as rent to him, part directly planted by him. The plaintiffs utterly failed to show upon which account any of the bales of cotton in controversy were received. This is not a case of -intermixture of cotton, for there is no proof that McKenzie intermixed any of it. The plaintiffs have simply failed to prove the souroe from which the twenty-four bales of cotton came. The most that they could claim under the mortgage is that all of the cotton which McKenz-ie may have received from direct cultivation, or which he caused to be cultivated by bis tenants, or may have accrued to him as rent from his *318tenants, would fall within the mortgage. See Blakemore v. Eagle, 73 Ark. 477; Delta Cotton Co. v. Ark. Cotton Oil Co., 80 Ark. 431.
But that which was received by him in payment of supplies which he had furnished, or in repayment of rents which he had paid for tenants, wiould not fall within the terms of the mortgage, either legally or equitably. Plaintiffs have merely showed that these bales came from places more or less under the control of McKenzie; but in showing that the same witness by. whom they showed it .also showed the different kinds of indebtedness of the parties from whom the cotton was received. The court correctly summed up the evidence required to make a case and the want of the essential elements. Judgment is affirmed.
Mr. Justice Wood dissents.