Opinion
5 Div. 818.
April 21, 1931.
Appeal from Circuit Court, Coosa County; E. P. Gay, Judge.
Action in detinue by R. P. Harris against Henry Key, with intervention of claim by T. L. Neighbors. From a judgment for claimant, plaintiff appeals.
Reversed and remanded.
In the claim affidavit it is deposed that claimant "says that he claims to own the title, or a lien paramount to the right, title or interest in the following property, viz.: * * * by virtue of a landlord's lien or by virtue of a mortgage upon which a detinue suit dated the 20th day of December, 1929, in favor of R. P. Harris, plaintiff, against Henry Key defendant, for the sum of __________ dollars was issued by G. W. Miller, Clerk of the Circuit Court of Coosa County and levied by R. O. Snider, sheriff of said county."
Plaintiffs moved to dismiss the claim suit on the ground that the affidavit does not show whether claimant relies on a mortgage or on a landlord's lien, but states its claim in the alternative.
The court overruled this motion.
John A. Darden, of Goodwater, for appellant.
Where plaintiff sues in detinue for recovery of chattels conveyed by a mortgage, a landlord's lien interposed by a claimant cannot prevail. Johnson v. N.E. Co., 163 Ala. 463, 50 So. 911. After January 1st a mortgage on crops conveys the legal title to the crops grown for that year, and before that date only an equitable title. Mortgages on crops to be grown in subsequent years are void. Code 1907, § 4894; Code 1923, § 9008; Pinckard v. Cassels, 195 Ala. 353, 70 So. 153; Windham v. Stephenson, 156 Ala. 341, 47 So. 280, 19 L.R.A. (N.S.) 910, 130 Am. St. Rep. 102. Plaintiff was entitled to the affirmative charge as requested. Slaughter v. Webster, 194 Ala. 642, 70 So. 128; Burns v. Campbell, 71 Ala. 288. The claim affidavit was defective. Bennett v. McKee, 144 Ala. 604, 38 So. 129; Code 1923, § 10375; Ivey v. Coston, 134 Ala. 259, 32 So. 664.
Pruet Glass, of Ashland, for appellee.
Brief did not reach the Reporter.
This is an action of detinue by the appellant against one Henry Key. The appellee duly intervened as claimant of the property sued for, filing his affidavit of claim, and the appropriate issue was made up, and the trial proceeded thereon. Hall B. W. Machine Co. v. Haley Fur. Mfg. Co., 174 Ala. 190, 56 So. 726, L.R.A. 1918B, 924; Code 1923, § 7403; Id. § 10379.
The "affidavit of claim," referred to, was sufficient. McDonald v. Stephens, 204 Ala. 359, 85 So. 746.
Under the uncontroverted evidence offered on behalf of appellant, he owned the legal title to the crops in question, and was entitled to the immediate possession thereof. Code 1923, § 9008.
Under no phase of the appellee's testimony, as we read it, did he show more than that he was a lienor with reference to said crops, or, that he had an equitable title thereto. Johnson v. New Enterprise Co., 163 Ala. 463, 50 So. 911.
In neither of the two events mentioned could appellee prevail in this suit.
The court was in error in giving the general affirmative charge in favor of appellee, and in refusing to give same (it having been duly requested) in favor of appellant. Johnson v. New Enterprise Co., supra.
The judgment is reversed, and the cause remanded.
Reversed and remanded.