W.B. Smith & Sons v. Gay

• Decision Date: 11 August 1925
• Docket Number: 7 Div. 15
• Citation: 106 So. 214,21 Ala.App. 130
• Parties: W.B. SMITH & SONS v. GAY et al.
• Court: Alabama Court of Appeals

106 So. 214

21 Ala.App. 130

W.B. SMITH & SONS v. GAY et al.

7 Div. 15

Court of Appeals of Alabama

August 11, 1925

Rehearing Denied Oct. 27, 1925

Appeal from Circuit Court, Clay County; E.S. Lyman, Judge.

Action by S.J. Gay and another against W.B. Smith & Sons. From a judgment for plaintiffs, defendants appeal. Reversed and remanded.

Defendant entitled on request to instructions that plaintiff may not recover on count not supported by undisputed facts.

Count 1 is in trover, for the conversion of cotton. Counts 2 and 3 are as follows:

"(2) The plaintiffs claim of the defendants $400 for damages, for that the plaintiffs had a lien on one bale of cotton weighing 455 pounds, warehouse No. 2055, one bale of cotton weighing 462 pounds, warehouse No. 2076, one bale of cotton weighing 520 pounds, warehouse No. 3480, one bale of cotton weighing 493 pounds, warehouse No. 2314, and one bale of cotton weighing 400 pounds, warehouse No. 2259, by one mortgage executed to the plaintiffs by J.E. Brooks, which mortgage was given on, to wit, January 25, 1919, and recorded in the office of the judge of probate of Clay county, Ala on, to wit, January 28, 1919, in Mortgage Record 56, page 299, and plaintiffs aver that said cotton was raised by said J.E. Brooks or by his tenants on his place in Clay county Ala., and plaintiffs aver that the defendants, with notice of plaintiffs' lien, removed said cotton or disposed of the same and refused, after demand by the plaintiffs, to return and deliver said cotton to the plaintiffs, but on the contrary removed the same and converted it to their own use without the consent of the plaintiffs, thereby hindering and delaying the plaintiffs in the enforcement of the lien on the said cotton, and by reason of the action of the said defendants the plaintiffs aver that they failed in the collection of their mortgage to the amount of $400 as aforesaid, and plaintiffs aver that there is yet due and unpaid upon the above-named mortgage of J.E. Brooks, covering all crops raised by him and by his tenants for the years 1919 and 1920, the sum of $400.

"(3) Plaintiff adopts all of count 2 down to and including the words, 'Converted it to their own use without the consent of the plaintiffs,' and adds thereto the following: 'And by reason of which action of the defendants the plaintiffs were unable to enforce their liens upon said cotton, and same was lost to the plaintiffs by reason of the defendants' action to plaintiffs' loss of, to wit, $400, as aforesaid, wherefore they sue.' "

To these counts defendants demurred as follows:

"(8) For that it is not averred in what way the defendants hindered and delayed the plaintiffs in the enforcement of their alleged lien on said cotton.

"(9) For that under the laws of this state a mortgage conveys legal title and no action in case lies for the destruction of a lien in a suit on a mortgage which conveys legal title.

"(10) It is not averred in said count(s) that the defendants removed said cotton so that they could not get possession of same by legal process or otherwise, and it is not averred how, when, or where defendants removed said cotton.

"(11) From aught that appears from count 2 (and count 3) of the complaint, said cotton was still in the possession of the defendants at the time this suit was filed."

On the trial, plaintiffs, over the objection of defendants, amended their complaint by adding counts 4, 5, and 6, for money had and received.

Walter S. Smith, of Lineville, for appellants.

Jas. W. Strother, of Dadeville, and Pruet & Glass and E.P. Gay, all of Ashland, for appellees.

SAMFORD J.

One Brooks, in January, 1919, executed a mortgage to plaintiff on his crops grown during the year 1919 and each successive year thereafter until the indebtedness secured thereby was paid. Brooks being the owner of the land upon which the crops were grown, such mortgage conveyed the title to the crops for 1919, and created a lien on the crops grown on the land for subsequent years. Truss v. Harvey, 120 Ala. 636, 24 So. 927. Since the adoption of the Code of 1923, § 9008, a different rule obtains, but the present statute does not affect conveyances executed before August 17, 1924.

Under the facts as disclosed by the record, none of the cotton, the subject-matter of this suit, was raised during the year 1919. That being the case, the plaintiff had no such title in the cotton as would sustain an action in trover, as claimed in the first count of the complaint. As to the first count defendant requested in writing the following charge:

"If the jury believe the evidence in this case, you must find a verdict for defendants under count 1 of the complaint."

It seems from the decision of the Supreme Court that, where the undisputed facts in a case do not support a particular count in a complaint the defendant is entitled, upon written request, to instructions that plaintiff may not have a recovery on such count. L. & N.R.R. v. Davis, 91 Ala. 487, 8 So. 552; Cunninghame v. Herring, 195 Ala. 469, 70 So. 148. Refusal to give such instruction will constitute reversible error. Authorities supra.

But where there are several counts in a complaint, some of which are supported by evidence, charges framed, as the one here considered, are misleading and properly refused. So. Ry. Co. v. Kendall, 14 Ala.App. 242, 69 So. 328; City of Birmingham v. Poole, 169 Ala. 177, 52 So. 937; L. & N.R.R. v. Sandlin, 125 Ala. 585, 28 So. 40.

Counts 2 and 3 state a substantial cause of action for the destruction of plaintiffs' lien, under the mortgage named, and these counts are not subject to the eighth, ninth, tenth, and eleventh grounds of demurrer as insisted by appellant. Bolling v. Kirby, 90 Ala. 215, 7 So. 914, 24 Am.St.Rep. 789. Authorities cited by appellant are not in point, the facts in those cases being different from the allegations here.

The various contentions of appellant based upon the claim that plaintiffs' suit is barred by the statute of limitations of one year are not tenable. Code 1923, § 8944, subdiv. 3; Underhill, etc., v. Mobile Fire Dept., 67 Ala. 45.

Under our statute, a complaint claiming in case for the destruction of a lien created by an equitable mortgage may be amended at the time of trial by adding counts for money had and received, growing out of the same transaction and which could have...