Lytle v. Bowdon

• Decision Date: 20 June 1895
• Citation: 18 So. 130,107 Ala. 361
• Parties: LYTLE ET AL. v. BOWDON.
• Court: Alabama Supreme Court

18 So. 130

107 Ala. 361

LYTLE ET AL. v. BOWDON.

Supreme Court of Alabama

June 20, 1895

Appeal from circuit court, Henry county; Jesse M. Carmichael, Judge.

Assumpsit for money had and received, by Samuel Bowdon against R. A Lytle & Co. Judgment for plaintiff, and defendants appeal. Affirmed.

Thos W. Espy, for appellants,

Pearn &amp Pace, for appellee.

COLEMAN J.

In the latter part of November, 1889, one Cameron executed a mortgage, which was duly recorded, on his crop of cotton to be grown the following year, to Samuel Bowdon. There was evidence tending to show that the appellants purchased a bale of cotton raised by the mortgagor on lands which belonged to his sister, but upon which the mortgagor had resided for about four years. There was no positive and direct evidence that the defendants had sold the bale of cotton, or received anything in exchange for it. The plaintiff sued in assumpsit, for money had and received. The cotton was purchased and received by Lytle & Co. in the fall of the year 1890, and the present action was commenced in June, 1891. The defendants requested the court to charge the jury-First, that if the jury believed the evidence their verdict should be for the defendants; and, second, that it was incumbent on the plaintiff to show that Lytle & Co. had sold the cotton and received the money for it, or its equivalent. These charges were refused. The mortgagee did not, under the mortgage, acquire the legal title to the cotton, so as to enable him to maintain trover or detinue. Paden v. Bellenger, 87 Ala. 575, 6 So. 351; Mayer v. Taylor, 69 Ala. 403; Grant v Steiner, 65 Ala. 499. But he acquired an equitable title, sufficient to support the equitable action of assumpsit for money had and received. 1 Brick. Dig. p. 140, § 72. The action for money had and received will not lie to recover the value of property, unless there is evidence that the property has been sold and the money received, or its equivalent, or unless a sufficient time has elapsed to raise the inference that it has been converted into money. Moody v. Walker, 89 Ala. 619, 7 So. 246; 1 Brick. Dig. p. 140, § 74. What is a sufficient time to raise such an inference is a question of fact for the jury, under all the attending circumstances. Lytle & Co. were merchants. They purchased the cotton in the fall of the year 1890. The suit was instituted in June, 1891. It was for the jury to say whether there had been a...