Marx v. Nelms

• Decision Date: 02 February 1892
• Parties: MARX v. NELMS.
• Court: Alabama Supreme Court

10 So. 551

95 Ala. 304

MARX v. NELMS.

Supreme Court of Alabama

February 2, 1892

Appeal from circuit court, Perry county; JOHN MOORE, Judge.

Action by Samuel A. Nelms, administrator of M. F. C. Weaver, against F. M. Marx, for conversion. Judgment for plaintiff. Defendant appeals. Affirmed.

Pitts & Harwood, G. B. Johnston, and E. W Pettus, for appellant.

John F. Vary and J. H. Stewart, for appellee.

STONE C.J.

M. F C. Weaver lived on a plantation, and cultivated a crop of cotton thereon, in 1889. He died intestate August 17, 1889. At that time the cultivation of the crop was practically completed, but its growth had not ceased. It was in the fields, and ungathered. Most of these facts are shown in the testimony. The others are common knowledge. Two sons of deceased-one of them residing on the plantation, but on another part of it-then gathered the cotton, and sold it to the appellant, Marx. This sale was in August, 1889. The bales of cotton, were branded in the name of the deceased, and at the time of the purchase appellant knew M. F. C. Weaver was dead, and that no administration had been granted on his estate. Appellant resold the cotton in September, 1889. This is the alleged conversion for which this action was brought. No proof was made of the expense or value of the labor incurred or employed in gathering the cotton and preparing it for market, and no ruling was invoked bearing on this question. If there be anything in it, (upon which we decide nothing,) the record fails to bring it before us for consideration. On November 4, 1889, Nelms was appointed administrator of the estate of M. F. C. Weaver, deceased, and brought this action against appellant for the conversion of the cotton. The court, on written request, gave the general charge that, "if the jury believe the evidence, they must find the issue in favor of plaintiff." This ruling furnishes the subject of the chief assignment of error. The case of Blair v. Murphree, 81 Ala. 454, 2 South. Rep. 18, is relied on by appellant in support of the chief assignment of error stated above. The facts of that case were materially different from those found in the record before us, and that case was decided mainly on the exceptional facts it presented. Even with this explanation, the contention is plausible that some of the expressions found in that opinion tend to mislead, if they do not invade the domain of a well-recognized principle, which is essential to the maintenance of creditors' rights in estates of decedents. We there decided that the word "may," in section 2098 of the Code of 1886, does not impose on the personal representative the imperative duty of completing every crop the decedent may leave growing at the time of his death, irrespective of any prospect of profit to be derived from its completion. We...