Federal Land Bank of New Orleans v. Davis

• Decision Date: 18 January 1934
• Docket Number: 4 Div. 711.
• Citation: 152 So. 226,228 Ala. 85
• Parties: FEDERAL LAND BANK OF NEW ORLEANS v. DAVIS.
• Court: Alabama Supreme Court

152 So. 226

228 Ala. 85

FEDERAL LAND BANK OF NEW ORLEANS v. DAVIS.

4 Div. 711.

Supreme Court of Alabama

January 18, 1934

Appeal from Circuit Court, Geneva County; Emmett S. Thigpen, Judge.

Bill to establish and enforce a lien by the Federal Land Bank of New Orleans against T. C. Davis. From a decree sustaining a demurrer to the bill and dismissing it, complainant appeals.

Reversed and remanded.

B. W Smith, of Samson, for appellant.

Mulkey & Mulkey, of Geneva, for appellee.

THOMAS Justice.

The appellant, complainant in the court below, filed its bill averring that it is a corporation, organized under an act of Congress with the right to do business in the state of Alabama; was the holder of a first mortgage on the lands as described, which mortgage was executed by J. M. Moore and his wife; that said mortgage was duly foreclosed and the appellant became the purchaser at a less amount than the mortgage indebtedness; that the appellee, respondent in the court below, entered upon said premises and removed therefrom certain houses, barns, and cribs situated on said lands and averred to be covered by the mortgage of appellant; that the value of the premises was alleged to be greatly less than the amount due under the first mortgage thereon.

The appellant in its prayer for relief, sought to have a lien declared on said property unlawfully removed from the premises, and which property is now situated on lands under the possession or control of the appellee, but does not seek a lien on the lands upon which the said property is situated; and further prays for such other relief as it may seem meet and proper.

The appellee filed his demurrer to the bill setting forth several grounds of demurrer; the cause was submitted to the court for decree on demurrer, and thereupon on the 27th day of April 1932, the court rendered its decree, sustaining the demurrers to the complaint. This ruling of the court is made the basis of assignments of error.

To meet the grounds of demurrer, the appellant amended its bill of complaint, setting forth that the appellee was in possession of the property at the time of the removal of said houses barns, and cribs therefrom (claiming it as owner subject only to the first mortgage held by the complainant), and that T. C. Davis is insolvent and the appellant has no adequate remedy at law; that a judgment recovered at law would be wholly uncollectable; "that the property now situated on lands of T. C. Davis, and claimed by this complainant, is the property of this complainant; that it consists of real estate and not subject to attachment or action of detinue or any other remedy known to the law side of this court; that failure to give relief in a court of equity will deny to the complainant the real estate herein named;" and appellant prayed for additional relief, that the property as described be sold to satisfy the lien held by the appellant; that "division of the proceeds thereof be divided in proportion to the amount of interests found to be in each of said parties, and such other relief as may to your Honor seem meet and proper in the premises."

The demurrers to the original bill being refiled to the bill as amended, the court rendered its decree sustaining the demurrers to the bill as amended; thereupon, the appellant refusing to plead further, the court entered a decree dismissing the cause out of court. These several rulings are made the basis of assignments of error.

The demurrer takes the position that complainant has an adequate remedy at law for the enforcement of the rights arising out of a trespass alleged to have been committed on the premises in question.

We have indicated that the amended complaint avers that the appellee was in possession of the premises at the time the property was removed therefrom, claiming it as owner, subject only to the first mortgage held by complainant, and that respondent is insolvent and a judgment at law would be unavailing for the enforcement of a right as against the appellee for the alleged trespass made upon the premises.

The appellee, being in possession of the property, and the appellant, at the time of removal of said buildings, not having any right to the possession, it follows that the action of trespass at law could not be maintained by the appellant against the appellee in this case. Walker v. Tillis, 188 Ala. 313, 321, 66 So. 54, L. R. A. 1915A, 654; 38 Cyc. 1004.

The right of action in detinue in Gray v. Crowell et ux., 214 Ala. 425, 108 So. 239, was for a lunch wagon on wheels which stood upon the land and not affixed thereto, declared to be personal property.

In Alabama Machinery & Supply Co. v. Roquemore, 205 Ala. 244, 87 So. 435, the suit was for a trade fixture, and held a part of the freehold and not separate and distinct from the building. MacArthur Bros. Co. et al. v. Middleton, 200 Ala. 147, 75 So. 895.

And in Walker v. Tillis, 188 Ala. 313, 66 So. 54, L. R. A. 1915A, 654, the action was for trespass and trover; held one not in possession nor entitled to possession cannot maintain trespass quare clausum fregit for the wrongful removal of fixtures placed on real estate by a lessee or his sublessee; and an action in the nature of waste lies for the wrongful removal of fixtures by a tenant which results in injury to the reversion, and the landlord may apply for an injunction before the removal.

The decision in Bynum v. Gay, 161 Ala. 140, 49 So. 757, 135 Am. St. Rep. 121, was trespass to realty, to the effect that trees cut from plaintiff's land, and without the knowledge or procurement of defendant were converted into timber and incorporated into the latter's fences and buildings, it lost its character as personal property and became realty and not subject to an action of trover. Thweat, Adm'r v. Stamps, 67 Ala. 96.

And in Granade v. United States Lumber & Cotton Co. et al., 224 Ala. 185, 192, 139 So. 409, 415, the cases are collected to the effect that for trover and conversion plaintiff must have the right of property and possession, or the immediate right of possession at the time of conversion, to maintain an action therefor; that timber cut from the land, or such other part of the freehold, such as coal, minerals, sand, gravel crops, etc., or fixtures, "is severed from the freehold, they become personalty, and trover will lie for the conversion"; that-

"It is * * * established that trover-a transitory or personal action-is not a proper form of action to try title to land. Aldrich Mining Co. v. Pearce, 169 Ala. 161, 166, 52 So. 911, Ann. Cas. 1912B, 288, and authorities.

"In Green v. Marlin, 219 Ala. 27, 29, 121 So. 19, it was recently declared that the owner of freehold cannot maintain trover for timber severed from it, if at the time of severance he had not actual or constructive possession thereof; that constructive possession by plaintiff following title to freehold is sufficient to maintain trover for cutting timber, unless defendant has actual adverse possession. White v. Yawkey, 108 Ala. 270, 19 So. 360, 32 L. R. A....