80 So. 623 | Ala. Ct. App. | 1918
This case was submitted on a motion to strike out of the bill of exceptions the oral charge of the court, and on the merits. Whatever may have been the view of this court on the motion, its views must now conform to the decision of the Supreme Court, and the motion of the appellee to strike must be overruled. Ex parte Mobile Light R. R. Co., in re Mobile L. R. R. Co. v. Thomas,
After the evidence for plaintiff was all in, the defendant moved the court to exclude the evidence, and for a judgment. This motion was properly overruled. A motion of this kind does not take the place of a demurrer to the evidence, or the affirmative charge. Abraham Bros. v. Means, ante, p. 42,
When this case was before the Supreme Court on a former appeal (Wilson v. Ratcliff,
But it is not the intention to convert that gives a right of action; it is the act itself. There must be an act of conversion, in contradistinction to evidence tending to show conversion. 6 Mayf. Dig. p. 894, par. 12; Rogers v. King,
"The rule of law is that no tenant in common can sue the other tenant in common for conversion, that is what this suit is, for trover, for conversion, till the other tenant in common is justified in the belief that he intended to convert that to his own use and deny the right of the other tenant in common. For instance, you and I own a horse together, it belongs to both of us, or a bale of cotton together, each one is entitled to the possession of it and neither one can sue the other about the possession of it or the conversion of it, so long as we stand in that relation, and if one of the joint owners, one of the tenants in common, assumes authority over the joint property in such a way as to show reasonably, to satisfy the jury that he intends to deny the rights of the other, and appropriate it to his own use, then this action of trover will lie"
— is not in line with the views herein expressed, and for that reason the judgment must be reversed, and the cause remanded.
Reversed and remanded.