73 Ala. 155 | Ala. | 1882
— The action is one of detinue brought by appellants against the appellee for certain personal chattels. The plaintiffs claimed title under a verbal or parol mortgage, by which the defendant stipulated that the property' “should stand good for his indebtedness” to them, which is shown to have been something over the sum of three hundred dollars. There was no change in the possession of the chattels by delivery, they still remaining in the hands of the defendant. The court charged the jury that the legal' title did not pass to the plaintiffs under the agreement, and that no recovery could be had on>it in this action.
It is evident that to maintain the action of detinue, the plaintiff must have a general or special property in the goods sought to be recovered, and the right to its-immediate possession; and in all cases where he has never had the actual possession, he must ha/oe the legal title in order to entitle him to a recovery.— Reese v. Harris, 27 Ala. 301; 1 Brick. Dig. 572, § 7. Of course against a mere wrong-doer or trespasser, not showing any property in himself, he may recover on his .previous possession without more. — Bryan v. Smith, 22 Ala. 534; Gafford v. Stearns, 51 Ala. 434.
The whole question in the case then is, whether the verbal mortgage under consideration conveyed the legal title to the plaintiffs. Our opinion is, very clearly, that it did not, and that the ruling of the court on the -subject was free from error. There can be no question about the fact, that the agreement constituted a mere equitable lien on the chattels. The stipulation that the property should u stand good” for the debt of defendant was the same in effect as a verbal hypothecation of the property as a security for the debt. It was in the nature of an equitable, rather than of a legal mortgage. The distinction between the two is well settled, and their ear-marks easily distinguishable. Every valid agreement for a 'lien or charge on property, with the intention of creating a security for a debt, which would exist without delivery of the property to the creditor, constitutes an equitable mortgage. — Donald v. Hewitt, 33 Ala. 534; Butts v. Broughton, 72 Ala. 295. Such agreements do not operate to convey a legal title, the intention being merely to create a charge in rem, which can be enforced only by a resort tó a court of equity, with its exclusive jurisdiction of trusts. —Fletcher v. Morey, 2 Story, 555; Dunning v. Stearns, 9 Barb. (N. Y.) 630; Newlin v. McAfee, 64 Ala. 357. It has often been held that such a lien, without possession acquired under it, will not support an action of detinue, trover or trespass. — Grant v. Steiner, 65 Ala. 499; Rees v. Coats, 65 Ala. 256; Elmore v. Simon & Bro., 67 Ala. 526; Gafford v. Stearns, 51 Ala. 434.
The decisions are numerous which sustain the view that the words used create a mere equitable lien.- A stipulation that certain property should “be boimd for the rent” of a hotel leased by the mortgagor has been so construed.— Wright v. Bircher, 5 Mo. App. 322. So an agreement that the rent “should be paid before the or ops are removed from the premises.” — Weed v. Standley, 12 Fla. 166. A contract that a person “should have and maintain a lien” was held to be an equitable mortgage and enforced as such, in Dunning v. Stearns, 9 Barb. (N. Y.) 630, supra; and a similar ruling was made in Donald v. Hewitt, 33 Ala. 534, where the contract provided that workmen should “retain a special lien” on a steam-boat. It is only in those States where the distinction between law and
The judgment of the circuit court must be affirmed.