Tallassee Falls Mfg. Co. v. First National Bank

49 So. 246 | Ala. | 1909

DOWDELL, C. J.

The second count of the complaint failed to aver the time of the alleged conversion. Form 24, p. 1199, Civ. Code 1907; Mobile, J. & K. C. R. R. Co. v. Bay Shore Lumber Co., 158 Ala. 622, 48 South. 377; Williams v. McKissack, 125 Ala. 544, 27 South. 922. The demurrer was well taken on this ground, and should have been sustained.

The second plea Avas indefinite and uncertain in averment as to the OAvnership of the alleged prior lien, and was therefore open to the demurrer. If the OAvnership of the lien Avas in a third person, then the averments of the plea Avere insufficient, under the authority of Keith & Son v. Ham, 89 Ala. 590, 7 South. 234. It is a well-settled principle that, in order to sustain the action of troArnr, the plaintiff must have at the time of the alleged conversion the right of property; that is, title, general or special, and the possession, or an immediate right of possession. — Johnson v. Wilson & Co., 137 Ala. 468, 34 South. 392, 97 Am. St. Rep. 52; Fields v. Copeland, 121 Ala. 644, 26 South. 491; Elmore v. Simon, 67 Ala. 526.

The plaintiff claimed under a mortgage given on a growing crop, or crop to be grown, and by the terms of which the property remained in the mortgagor until the 15th of October, 1905, and until which time there was no right of possession in the plaintiff. The undisputed evidence showed that the alleged conversion took place on the 27th of September, 1905. At this time the plaintiff had no immediate right of possession. On this evidence, being as it was, undisputed, the defendant was entitled to the general charge, as requested in writing and the court erred in its refusal.

For the errors indicated, the judgment is reversed, and the cause remanded.

Reversed and remanded.

Simpson, Denson, and Mayfield, JJ., concur.