Walker v. State

111 Ala. 29 | Ala. | 1895

BRICKELL, C. J.

Corn,cotton,and other like crops, not the spontaneous growth of the earth, produced annually'by labor and industry,are known as emblements, and on the death of the occupier of the land, whether he be the owner of the inheritance or of an estate terminating with his life, pass to his personal representative.— 1 Williams Ex’t’rs, 710. It is a well known rule of criminal pleading, that when it becomes necessary to a.ver the ownership of property which resided in one dead, while living, if it be personal property, passing to the personal representative, of which he has custody, actually or constructively,the ownership must be hid in him. If real property, then in the heir or de.visee, and it is generally sufficient to aver it in the actual possessor.

The title of the personal representative relates to the death of the decedent, and he may maintain.suits against those who have taken or converted the goods of the decedent in the interim between his death and the grant of administration. — Upchurch v. Norsworthy, 12 Ala. 552; s. c. 15 Ala. 705. Though the corn may have been-stolen after the death of the owner of the lands, and before the grant of administration, the ownership would have been properly laid in the personal representative subsequently appointed; title to it vested in her by relation. And it could have been laid in her as the possessor, she succeeding to the possession of her late husband. But laying the ownership in her and her minor children jointly, was erroneous ; they did not have any joint possession — the possession devolved on the mother only. Brown v. Beason, 24 Ala. 466. If the ownership is laid in several persons as joint owners, a joint ownership must be proved; it is not sufficient to prove that it is in a less number than charged. — Parmer v. State, 41 Ala. 416. It results the court below erred in the charge given, and in the refusal of the charge requested.

The judgment is reversed and the cause remanded. The defendant will remain in custody until discharged by due course of law.