Opinion
6 Div. 886.
April 24, 1919.
Appeal from Circuit Court, Jefferson County; John H. Miller, Judge.
Graham Perdue, of Birmingham, for appellant.
Frank S. Andress, of Birmingham, for appellee.
As we understand the evidence for the plaintiff, he was vested with a one-half interest in the hog — the subject-matter of this suit — and under the special arrangement had with his brother, who originally owned the hog, he was to have the care and custody of the same.
It is first insisted on the part of appellee that, should it be conceded that the plaintiff owned a one-half interest in the hog, no recovery could be had, for the reason a tenant in common cannot maintain a suit in detinue for his interest in property against the cotenant — citing Smith Co. v. Rice, 56 Ala. 417.
This, of course, is a well-recognized general rule; but we think the evidence brings this case within the exception that joint owners may by special agreement invest one of them with a special possessory interest sufficient to sustain detinue. Under the special agreement made between the plaintiff and his brother, the possession of the hog was to be and remain with the plaintiff for the purposes agreed upon; and the plaintiff is shown to have had under this agreement a special possessory interest, which, we think, is sufficient to base an action of detinue. 14 Cyc. 249, note 40, wherein are cited the cases of Pierce v. Jackson, 56 Ala. 599; Raybourne v. Shakers Soc. (Ky.) 30 S.W. 622.
One who purchases chattels from another acquires no better title than his vendor had, although he purchases without notice of any infirmity in the title and for a valuable consideration. Bennett v. Brooks, 146 Ala. 490, 41 So. 149.
Appellee insists that the evidence in regard to the loan, and a pledge of a one-half interest in the hog as security therefor, was not sufficient to vest title in the plaintiff to said remaining one-half interest. Williamson v. Culpepper, 16 Ala. 211, 50 Am. Dec. 175; Smith v. Mineral Co., 14 Cal. 242; Travelers' Ins. Co. v. Lazenby (App.) 16 Ala. App. 549, 80 So. 25; J. E. Butler Co. v. A. G. Henry Co., ante, p. 155, 79 So. 630.
The conclusion we have reached, however, does not require a consideration of that question, for, as previously shown, we are of the opinion that, under the special agreement disclosed by the proof, the plaintiff may maintain the suit in detinue, although it be conceded that he only owns a one-half interest in the hog. The evidence offered by the plaintiff was without conflict, and was in no manner impeached, and therefore, indulging presumptions in favor of the ruling of the court below, we are still of the opinion the judgment rendered was erroneous, and the plaintiff's motion for a new trial should have been granted. The judgment is reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and SAYRE, JJ., concur.