Dixie Fertilizer Co. v. Teasley

• Decision Date: 19 October 1915
• Docket Number: 173
• Citation: 14 Ala.App. 283,69 So. 988
• Parties: DIXIE FERTILIZER CO. v. TEASLEY.
• Court: Alabama Court of Appeals

69 So. 988

14 Ala.App. 283

DIXIE FERTILIZER CO. v. TEASLEY.

No. 173

Court of Appeals of Alabama

October 19, 1915

Appeal from Circuit Court, Montgomery County; W.W. Pearson, Judge.

Action by the Dixie Fertilizer Company against C.B. Teasley. From a judgment for defendant, plaintiff appeals. Affirmed.

Eugene Ballard, of Prattville, for appellant.

Rushton Williams & Crenshaw, of Montgomery, for appellee.

PELHAM P.J.

The case was tried before the court without a jury, and if the judgment rendered can be supported by the evidence, the conclusions reached by the trial judge on the facts should not be disturbed on this review. Montgomery Lodge v Massie, 159 Ala. 437, 49 So. 231; Witner-Loeb Grocery Co. v. Mutual Warehouse Co., 4 Ala.App. 431, and authorities cited on bottom of page 436, 58 So. 807.

The action was brought for the conversion of 10 bales of cotton and a count was added by amendment for money had and received, and the case tried to a conclusion as if pleas of the general issue and estoppel had been filed, and it will be treated on review as if such pleadings had been filed. R. & D.R.R. Co. v. Farmer, 97 Ala 141, 12 So. 86; Gainer v. Southern Ry. Co., 152 Ala. 186, 44 So. 652; Planters', etc., Co. v. Webb, 156 Ala. 551, 46 So. 977, 16 Ann.Cas. 529; American Sales Book Co. v. Pope, 7 Ala.App. 304, 61 So. 45. There was judgment for the defendant, from which this appeal is prosecuted.

The judgment of the lower court, finding that there had been no conversion of the cotton by the defendant, as alleged in the complaint, finds support in that phase of the testimony of the witness Robert Green to the effect that he sold the cotton and brought the proceeds to the defendant, Teasley, and of the defendant as a witness in his own behalf that he had never had any of the cotton in question or the warehouse receipts for it, but that his only connection with it was to receive the proceeds of sale from it, brought to him by the negro, Green, who raised it, after it had been sold by him. That part of the cotton that the defendant instructed the tenant to sell and bring to him (defendant) the proceeds is shown to have gone in satisfaction of a landlord's lien that was admittedly superior to both of the mortgage liens of the plaintiff and defendant. It would thus appear, under this phase of the testimony, that the court below was justified in finding that the defendant had not, as alleged, converted any part of the cotton of which the plaintiff could complain--that he had not at any time had the actual or constructive possession of it.

Counsel for the appellee also makes the point in brief that the judgment of the lower court in favor of the defendant should be affirmed, because it is not shown by anything set out in the bill of exceptions what was the law day of the appellant's mortgage, and for aught appearing it had not passed, and the appellant under the terms of its mortgage was not entitled to the possession of the cotton, and that therefore its action in trover must fail, and properly did fail, because it did not have the actual or constructive possession, or the right to the immediate possession necessary to support the action; contending, further, that while a sale of the entire property by the mortgagor, without satisfaction of the mortgage debt, is tortious, and operates such an injury to the mortgagee's reversionary interest, or right of possession, or to his lien, that a special action on the case will lie (Heflin & Phillips v. Slay, 78 Ala. 184), yet in the present suit there is no claim, or count in the complaint, based on the destruction of the appellant's lien, and that a recovery cannot be supported under a trover count where the party's right of possession depends upon a mortgage the law day of which had not passed, or is not shown to have passed. A careful examination of the evidence set out in the bill of exceptions fails to disclose what was the law day of the mortgage relied upon by the appellant, or that it had passed at the time of the alleged conversion of the cotton, and the point made by counsel for appellee seems to be well taken, for to support an action of trover for conversion the plaintiff must have a general or special right of property, a possession or the immediate right of possession, which must concur...