122 Ala. 414 | Ala. | 1898
— The appellant, plaintiff in the court below, sued the defendants in trover for the conversion of twenty bales of cotton. The complaint is in the form given in the Code. The defendants for answer to the complaint pleaded three pleas, the first being the general issue, the second specially denied that plaintiff ever had any property in the cotton for the conversion of which the suit was brought, and the third averred a special property in the defendants to the cotton superior to any right therein of the plaintiff. The second and third pleas
“To support an action of trover, the right of property, general or special, and possession or an immediate right of possession, must concur in the plainti if at the time of the conversion; and to constitute a conversion, there must be a wrongful taking or a wrongful detention, or an illegal assumption of ownership, or an illegal user or misuser.” — Booker v. Jones, 55 Ala. 266. The plea of the general issue under section 3295, Code of 1896, put in issue all of the material allegations of the complaint. This plea, therefore, put in issue not only the fact of conversion, but also the allegation that the cotton converted Avas the property of the plaintiff. This latter averment of property in the plaintiff was a material allegation, and any plea putting in issue'this allegation or averment, Avhether in form a special plea or the general issue, is sufficient. A general property, coupled with, the right of possession to the thing in action, is sufficient to support a recoArery for a Avrongful conversion, but a special property in the defendant, at the time of the alleged conversion, in the thing for Avhich the suit is brought, may defeat a recovery by one having only a general property. The second and third pleas, Avhich were demurred to, neither set up nor attempted to set up any defense that could not have been shown under the first plea — the general issue. The overruling of the demurrer to these plea's, therefore, if error, was error without injury.
There Avas evidence that the mortgagor, ITassey, raised and made the cotton in question on rented lands. The landlord, for the current rent, undoubtedly had a claim to the cotton Avhich was superior to that of the mortgagee, Beall. There Avas also eAddence tending to show that the mortgagor, Hassey, had authority and permission from the landlord to sell the cotton, turning over the proceeds of the sale to the landlord in payment of rent. Certainly to the extent of the landlord’s rent there could be no conversion by the purchaser of which the mortgagee, Beall, could complain. The evidence on this line was competent and properly admitted by the court.
The record in this case shows that there was a conflict between the plaintiff’s evidence, as given in his own behalf, and that of some of plaintiff’s witnesses. • The presiding judge, in his oral charge, among other things said to the jury, “that they must, if they can, reconcile the testimony of the witnesses, and that a party calling a witness to testify in his behalf is precluded from impeaching his truth and veracity, and that one of the complications you will have to solve in this case is, that some of plaintiff’s witnesses have testified differently from the plaintiff.” The plaintiff excepted to that part of the charge which says, “and that one of the complications you will have to solve in this case is, that some of the plaintiff’s -witnesses have testified differently from the plaintiff.” It is insisted by counsel for appellant that this was a charge upon the effect of the evidence. We cannot agree to this insistence. It was nothing more than stating that there was a dispute in the evidence, and no attempt whatever to charge upon its effect. The court was authorized to do this under the statute.— Code, 1896, § 3326; Tidwell v. State, 70 Ala. 44.
There is no error in the record and the judgment of the circuit court is affirmed.