Opinion
7 Div. 502.
October 23, 1924.
Appeal from Circuit Court, Calhoun County; A. P. Agee, Judge.
Merrill Allen, of Anniston, for appellant.
To maintain trover, plaintiff must have general or special property in the chattel, and actual possession or right of possession. Rolfe v. Huntsville Lbr. Co., 8 Ala. App. 487, 62 So. 537. As for conversion of mortgaged property, the measure of damages is the amount of the mortgage debt, not exceeding the value of the property, and the amount of the debt must be proved. Stewart Bros. v. Harris, Cortner Co., 6 Ala. App. 518, 60 So. 445. The sufficiency of a pleading, which undertakes to go into particulars, must be judged by reference to those particulars. B. R., L. P. Co. v. Weathers, 164 Ala. 28, 51 So. 303.
Charles F. Douglas, of Anniston, for appellee.
The first count met the requirements of the Code form. Code 1907, § 5382 (24); Kyle v. Caravello, 103 Ala. 150, 15 So. 527. The pledgor of a mortgage may maintain trover against a third person for conversion of the mortgaged property. Fairbanks v. Chunn, 2 Ala. App. 642, 56 So. 847.
The first count for a conversion is in code form, and is not subject to any of the grounds of demurrer. It is of course the law that, where a sufficient general allegation is made in pleading, and it is followed by an unnecessary allegation of details as constituting the cause of action, the merit of the complaint will be tested by the sufficiency of the facts to show a cause of action. B. R., L. P. Co. v. Weathers, 164 Ala. 23, 51 So. 303; Sheffield v. Morton, 161 Ala. 153, 49 So. 772.
But the facts here so alleged do not contradict or impair the general allegation that the defendant converted the plaintiff's property. On the contrary they show a conveyance of the cotton by the owner to the plaintiff, which imports, prima facie, the transfer of the legal title with the right of possession, and the independent allegation that the mortgage was in the possession of the bank as collateral security does not show that the bank had acquired the legal title to the mortgaged cotton by an appropriate transfer of the mortgage, though such may have been the case. That fact, if material, was defensive matter, and available under the general issue.
The allegation that the amount recovered is to be paid over to the bank in discharge of plaintiff's debt is of course irrelevant surplusage which in no wise affects the merit of the complaint.
It is not necessary in a trover count to allege the value of the property converted, nor the amount of the mortgage debt when the plaintiff's title and right are based upon a mortgage. Each of those factors is material and definitive of the amount of the plaintiff's recovery, but it is a matter of proof and not of pleading.
The above considerations are applicable also to the objections made in the second count.
It is to be observed, however, that the action for money had and received to the use of the plaintiff is equitable in character (Traweek v. Hagler, 199 Ala. 664, 75 So. 152; Barnett v. Warren, 82 Ala. 557, 2 So. 457), and the question of legal title and a right to possession of the mortgaged chattels is not material, under the conditions shown, as it would be in a trover count (Boyett v. Potter, 80 Ala. 476, 2 So. 534; Thornton v. Strauss, 79 Ala. 164).
We find no error in the rulings of the trial court, and the judgment will be affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.