Opinion
7 Div. 766.
October 13, 1927.
Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge.
Goodhue Lusk, of Gadsden, for appellant.
Defendant purchaser of mortgaged cotton, in action of trover by mortgagee, is entitled to judgment where conversion was before law day of the mortgage. Smith Sons v. Howell, 21 Ala. App. 549, 110 So. 57; Johnson v. Wilson, 137 Ala. 468, 34 So. 392, 97 Am. St. Rep. 52. Plaintiff mortgagee, in action of trover against purchaser of mortgaged cotton from the mortgagor, is bound by the finding of the jury and judgment thereon in prior detinue suit between plaintiff and the mortgagor, wherein balance due on mortgage is ascertained. Moore-Handley Hdw. Co. v. Curry, 106 Ala. 284, 18 So. 46; Jones v. White, 189 Ala. 622, 66 So. 605.
W. T. Murphree, of Gadsden, for appellee.
Brief did not reach the Reporter.
It is unquestionably the law that to support a count in trover the right of property, general or special, and possession or an immediate right of possession, must concur in the plaintiff at the time of the conversion. So, also, when the plaintiff relies upon a mortgage as the source of title, he must show that the conversion occurred after the law day of the mortgage, that is, after the plaintiff, under the terms of the mortgage, had the right to take or seize the property. Johnson v. Wilson Co., 137 Ala. 468, 34 So. 392, 97 Am. St. Rep. 52, and cases there cited. It is true the notes which the mortgage in the case at bar were given to secure were not payable until November 1, and the proof shows that appellant converted the cotton in October; yet said mortgage gave the appellee the right to seize the property whenever he deems himself insecure, and which is different from the mortgage considered in the Johnson Case, supra. We therefore hold that the trial court did not err in rendering judgment for the plaintiff under the first or trover count of the complaint, and which is the only error assigned.
Appellant's counsel argue and insist upon error upon the part of the trial court in the fixation of the amount due upon the mortgage by allowing the credits for a certain mule and other cotton as per the price brought at mortgage sale, rather than the value fixed by the jury in a former detinue suit; but whether this was erroneously done or not, it merely went to the amount due upon the mortgage, and neither method would have extinguished the mortgage debt and thus prevented a recovery, and, as above noted, the assignment of error went to the rendition of a judgment for the plaintiff, and not the amount of same or the improper allowance of credits on the mortgage debt.
The judgment of the circuit court is affirmed.
Affirmed.
SOMERVILLE, THOMAS, and BROWN, JJ., concur.