74 Ala. 432 | Ala. | 1883
— These two causes, although originating and tried in different counties, are so intimately connected, that we will consider them together. The ownership of six — the same six — bales of cotton, is the subject of each suit. Each of the actions is for the recovery of personal property in specie, corresponding to the common-law action of detinue.
The cotton in controversy was grown in the year 1879, on the lands of Ligón, by the labor of one Mitchell. The crop was cultivated, grown and gathered, nnder an agreement that Ligón should furnish the lands, team and farming implements, and Mitchell should furnish the labor. Ten bales of cotton were produced, of which six are involved in the suit against Ligón, and five of the same six in the suit, against Myers & Co. There had been no division, or separation of the shares of the joint owners, Ligón and Mitchell. On the 12th of April, 1879, Mitchell conveyed by mortgage the crop he was to grow and produce that year to 'J. R. & J. E. Graham, as security for supplies advanced, and to be advanced by them. There is testimony in the records tending to show, that nnder this contract Mitchell became indebted to the Grahams about three hundred dollars. The mortgage was recorded in due time in Cleburne .county — the county in which Mitchell resided, and in which the cotton was grown.
As we have said, each of these suits is a statutory action in detinue. The one against Ligón was instituted January 1st, 1880, and the one against Myers & Co., January 5th, 1880. Under the most favorable view for the plaintiffs which can be taken, their claim was but an undivided, unsevered interest in the cotton. This will not support the action of detinue. 1 Brick. Dig. 572, § 6; Smith & Co. v. Rice, 56 Ala. 418. To maintain that action, the plaintiff must have the legal title to, .and a right to the immediate possession of the entire thing.
Another insurmountable obstacle in the way of a recovery against Myers & Co. is, that they were not in possession of the property when the action was brought. According to the testimony of one of the plaintiffs, the cotton was in his possession when he instituted this suit. — 1 Brick. Digest, 573, §§ 28, 29; Gilbreath v. Jones, 66 Ala. 129; Lightfoot v. Jordan, 63 Ala. 224; Henderson v. Felts, 58 Ala. 590.
The complaint in the suit against Ligón was afterwards - amended, by adding common counts in debt, for money had and received. It will be remembered that this action was instituted January 1st. The proof is that the cotton was not sold until after that time. So, when the action was brought, defendant had received no money, to which plaintiffs could assert any claim. There can be no recovery on these counts. — Burns v. Campbell, 71 Ala. 271.
Each of the judgments must be affirmed.