68 Ala. 378 | Ala. | 1880
The present action, in which the ap-pellee was plaintiff, and the appellant was defendant, is trover for the conversion of two bales of cotton. To support the action, it was necessary for the plaintiff to prove property in himself, and a right to the possession at the time of the conversion by the appellant.—Glaze v. McMillion, 7 Port. 279; Kemp v. Thompson, 17 Ala. 9; Nations v. Hawkins, 11 Ala. 859. If it had been material to establish the existence of the debt owing TJrquhart for the rent of land, transferred by the mortgage to the appellee, it would have been permissible to show by parol, that though described in the mortgage as a note, it was owing by parol, and not by note. It is the debt, and not merely the evidence of it, which is transferred, and parol evidence would be admissible to identify it,
The transfer of the debt passed however simply an equity, substituting the appellee to the rights and to the place of the transferror. No title to any particular cotton could have passed to the mortgagor until there was a delivery of it to him by the tenant; nor would any title pass to the appellee as transferree, until such delivery was. made to him. There was a lien on the entire crop, whether of corn, cotton, or other annual products, for the payment of the debt, which were produced by the tenant in the current year. This lien has in it, however, no element of property ; neither the landlord, nor the transferree of the debt for the rent, has a jus in re, or a, jus adrem, and, therefore, neither of them can maintain trover against 9. wrong-doer, who may convert the crop. Folmar v. Copeland, 57 Ala. 588. Whether under the facts shown, an action on the case could be maintained, we do not consider, as the complaint has no count in case.—Hussey v. Peebles, 53 Ala. 432; Lomax v. Le Grand, 60 Ala. 537.
It is not necessary to pass severally upon the rulings of the Circuit Court to which exceptions were taken. There was error in several of them in this view of the case.
Reversed and - remanded.
