70 Ala. 244 | Ala. | 1881
Tlie gist of an action of trespass is the injury done to the possession; and, of consequence, to support it, the plaintiff must show that, as to the defendant, he had, at the time of the injury, rightful possession, ctcinial or constructive. The general property draws to it the possession, if there be no intervening adverse right of enjoyment. But, if the general owner has parted with the possession, conferring on another the exclusive right of present enjoyment, retaining in himself only the right to take or resume possession at some future time, or on the happening of some contingency, or event in the future, his right of possession is in reversion; and he can not maintain trespass for an 'injury to the property, while the particular right of possession is continuing.—2 Greenl. Ev. §§ 614-16; Davis v. Young, 20 Ala. 151; Nelson v. Bondurant, 26 Ala. 341.
The title of the appellees to the corn and cotton, for the taking of which the present action was brought, was that of mortgagees.—Boswell v. Carlisle, 55 Ala. 554. In a court of law, a mortgage is more than a mere security for a debt. In lands, it creates a direct, immediate estate — a fee simple, unless otherwise expressly limited. In chattels, it vests the entire legal property. The fee in the lands, and the title in chattels, is conditional, — subject to be defeated, if the condition annexed is performed, as performance may be appointed. If in the conveyance there is not a reservation, or a stipulation, that the mortgagor may remain in possession, until default in the performance of the condition, or until the happening of some other event, or of some other contingency, the mortgagee has the right of entry on lands, and of possession of chattels. The mortgagor, if remaining in possession, is a mere tenant at will of lands, or bailee of chattels, and may be ejected, or dispossessed, at the will of the mortgagee, though the law-day of the mortgage has not arrived. This is the relation the mortgagor and the mortgagee sustain to each other. Having the legal title to the chattels, and, as an incident, the right to the immediate possession (if there be not a restraining stipulation, or a contrary reservation), the mortgagee may maintain trespass for an injury to them while remaining in the visible, manual possession of the mortgagor.—Ellington v. Charleston, 51 Ala. 166; Thrash v. Bennett, 57 Ala. 154; Watford v. Oates, Ib. 290. But, if there is a stipulation, or a reservation, directly expressed in the mortgage, or matter of just and reasonable implication from its terms and conditions, that for a particular period the mortgagor shall remain in possession, during that period, and while possession continues in the mortgagor, for a wrong and injury to the chattels, however it may affect the title of the mortgagee, and his reversionary right to the possession,
The mortgage, under which the appellees deduce- title and the right to possession, is'of growing crops of corn, cotton, and other produce, to secure the payment of debts due, a debt falling due, and advances it was contemplated would be made to the mortgagor during the season for the growing and gathering of the crops. An.express stipulation of the mortgage is, that on the succeeding first day of November, the mortgagor should deliver to the mortgagee sixty bales of the cotton crop, and the remainder on or before the first day of January, if practicable. The condition expressed is, that if a sufficiency of cotton was delivered to pay the debts, the mortgage was to be void; but, if there was default in the payment of the debts, the mortgagees were authorised aud empowered “ to take possession of said crops of corn, fodder, cotton, and other produce,” &c. The right of the mortgagees to the possession of the crops is thus, by the terms of the mortgage, limited and confined to the default of the mortgagor in keeping and performing its conditions. They could not be broken at any earlier period than the first of November, when he was bound to make the first delivery of cotton. The corn and cotton, the taking,of which is the gist of the present action, was in the rightful possession of the mortgagor, when the taking and asportation occurred, — a possession he could have successfully maintained against the claim or demand of the mortgagees; and it follows, that, however wrongful and injurious to them it may have been, trespass is not the remedy to which they can resort.
A mortgagee of personal property may interpose, and support a claim for the trial of the right, if the property is levied on by execution or attachment against the mortgagor, though the law-day of the mortgage has not arrived. — Code of 1876, § 3349. A judgment in his favor, on the trial of the claim, determines only the validity of the mortgage, and that before the plaintiff in the process can reach the property, he must pay the mortgage debt. It is only the validity of the mortgage, and the liability of the property to levy and sale under the process against the mortgagor, which is, or can be, litigated in the claim suit. Whether the right of immediate possession at the time of the levy resides in the' mortgagor, or in the mortgagee, is not, and can not, under the statute, become a material issue in the suit; for, whether it resides in the one or the other, if the mortgage is valid, the claim of the mortgagee must be supported, and the remedy of the creditor is to pay the mortgage debt, and sell the property for his reimbursement, and for the satisfaction of his
This view is conclusive of the case, on the facts shown by the record, and it is unnecessary to look into other questions. The Circuit Court erred in the charge given to the jury.
Reversed and remanded.
