132 Ala. 559 | Ala. | 1902
— This was an action in trover for the conversion of a mule brought by the appellee against the appellant. In the course of the examination of the plaintiff as a witness in her own behalf, she was permitted to testify against the defendant’s objection “that when one Ricks, agent of the defendant, came after the mule, claiming the same under a mortgage given by plaintiff’s father, Nathan. Napier, to the defendant that her attorney advised her that the mule was her property and to object to anyone taking it but an officer of the law.” The question of a voluntary surrender of the mule by the plaintiff to defendant was a disputed fact in the case, and that part of the statement made in the presence of defendant’s agent by her attorney, “to object to anyone taking it [the mule]' but an officer of the law,” was competent and relevant on this issue, and the objection being to the statement as a whole, a part of which was good, there was no error in overruling the objection.
After the introduction in evidence of the mortgage from the plaintiff’s father to Womble, from whom the mule was purchased, with the indorsements thereon, without objection from the defendant,, a motion subsequently made in the course of the proceedings to exclude the same on the ground that its execution was not proven was properly overruled as coming too late.
The court erred in sustaining the motion of the plaintiff to exclude the statement by Claude King that he sent the mule back to the family of Nathan Napier, where it was when he sent for it. Claude King was
In Davis & Son v. Hurt, 114 Ala. 150, it was said by this court: “The gist of the action of trover is the conversion; the right of property may reside in the plaintiff entitling liim to pursue other remedies, but trover cannot be pursued without evidence of a conversion of the goods;” citing Glaze v. McMillan, 7 Porter 279; Conner & Johnson v. Allen & Reynolds, 33 Ala. 516; Bolling v. Kirby & Bro., 90 Ala. 215. And in the same opinion, further quoting from the case of Conner v. Allen, 33 Ala. 516, it was said: “Trover is one of the actions the boundaries of which are distinctly marked and carefully preserved by the Code. A conversion is now, as it has ever been, the gist of that action, and without proof of it the plaintiff cannot recover, whatever else he may prove or whatever may be his right
In Strauss & Sons v. Schwab et al., 104 Ala. 672, in an opinion by McClellan, J., it was said: “Property taken and held under a void contract of sale cannot be said to be wrongfully taken, since it passed to the purchaser and is held by him through the voluntary act of the seller and acording to the intention of both parties. Nor can it be said in such case that there is an illegal assumption of ownership by the purchaser; that could only result when the assumption of ownership is against the consent and intention of the seller. 'And there could be no illegal user or misuser of the property while it is held under such void sale, since, though the sale be void, so long as it is not disaffirmed by the seller he is in the attitude of consenting to all uses to which an absolute owner might devote the chattels. And so it is with the possession. That, as well as the taking, the assumption of ownership and the uses to which the property is put whatever they may be, is, notwithstanding the contract of sale, void, by the permission of the seller, and cannot be tortious until that permission is withdrawn by an election properly evinced on ‘his part to set aside the sale and reclaim his property citing Bolling v. Knight & Bro., 90 Ala. 215, 222, s. c. 24 . Am. St. Rep. 789.
Charges 5 and 11 Avere argumentative. The many written charges requested by the defendant in varying form were directed to questions above discussed and we deem it unnecesary to consider them in detail, as Avhat Ave have already said is sufficient for the purposes of another trial.
For the errors pointed out, the judgment of the circuit court is reversed and the cause remanded.