Carleton v. Kimbrough

• Citation: 43 So. 817,150 Ala. 618
• Parties: CARLETON v. KIMBROUGH.
• Decision Date: 07 May 1907
• Court: Supreme Court of Alabama

43 So. 817

150 Ala. 618

CARLETON v. KIMBROUGH.

Supreme Court of Alabama

May 7, 1907

Appeal from Circuit Court, Clarke County; John T. Lackland, Judge.

Action by J. W. Kimbrough against Kate Grayson, in which Crissie Carleton appeared and became the real party defendant. From a judgment for plaintiff, Crissie Carleton appeals. Reversed and remanded.

William J. Johnson, for appellant.

F. E. Poole, for appellee.

ANDERSON, J.

The plaintiff brought an action of detinue for one bale of cotton against Kate Grayson. The defendant disclaimed under section 2634 of the Code of 1896, and suggested Crissie Carleton, the appellant, as the right defendant. Crissie Carleton appeared and gave bond as is required by the statute, and thus became the real and only party defendant to said action of detinue.

The plaintiff, in order to recover, was put to proof of the legal title, which he attempted by introducing a mortgage given to him by the said Grayson. The undisputed evidence shows that Carleton furnished the land and team and Grayson the labor. Therefore, under section 2712 of the Code of 1896, Grayson, the mortgagor, had but a lien, and not such a property in the cotton as to convey a legal title to Kimbrough under the mortgage, and the trial court erred in not excluding the mortgage upon motion of the appellant. Section 1064, making mortgages on unplanted crops given after the 1st of January good conveyances of the legal title, applies to those who would have the legal title after the crop was planted, and not mere lienors.

It is insisted by counsel for appellee that any ruling of the court against the appellant was error without injury, as she had no standing in court, and that the trial court erred in not dismissing her claim, because she had filed no affidavit. The authorities cited apply to the trial of the right of property, where affidavit is required by claimant to give jurisdiction. There is no such requirement under section 2634 of the Code of 1896 as to the suggested defendant in detinue.

The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

TYSON, C.J., and DOWDELL and McCLELLAN, JJ., concur.