Wood v. West Pratt Coal Co.

• Decision Date: 12 April 1906
• Citation: 40 So. 959,146 Ala. 479
• Parties: WOOD ET AL. v. WEST PRATT COAL CO.
• Court: Alabama Supreme Court

40 So. 959

146 Ala. 479

WOOD ET AL. v. WEST PRATT COAL CO.

Supreme Court of Alabama

April 12, 1906

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

"To be officially reported."

Action by Sterling A. Wood and others against the West Pratt Coal Company. From a judgment for defendant, plaintiffs appeal. Reversed.

The appellants sued appellee in trover for the conversion of ten tons of railroad iron, called "T rails," five iron tipples, ten tram cars, frogs, switches, and other material. There was also a second count in case for destroying plaintiff's title and right to use the above property. There were demurrers to the complaint, which were overruled and issue was joined on the pleas of not guilty. On the trial the evidence showed that the defendants had purchased of McFarland & Co. the property above described as sued for. The plaintiffs introduced a lease executed between plaintiffs and McFarland & Co., leasing certain lands to McFarland & Co. for the purpose of mining iron ore, fixing the minimum amount to be mined each month, the royalties to be paid, and other things necessary to a mining lease, paragraph 6 of which is in the following language: "That they [McFarland & Co.] will not remove from said premises any machinery, tram rails tipples, chutes, or other materials that may be used in mining on said premises, nor sell or otherwise dispose of the same, until all of the said iron ore shall have been mined and taken therefrom as herein stipulated; and if they should cease mining, or this contract end and determine before all of said iron ore is mined and taken therefrom, the said parties of the first part shall have the right to use the said property mentioned for the purpose of mining the remaining part of said iron ore and until the same is mined." The evidence tended to show that a considerable portion of the ore remained unmined; that McFarland & Co. abandoned the contract, and without the consent of the plaintiff sold to the defendant the property sued for. The defendants sought to build up a title under a mortgage executed by McFarland & Co., to A. G. Stevenson. The property described in the mortgage is as follows: Twelve tram cars five gross tons of tram car rails, 600 tram car ties, 1,000 pounds spikes, 500 mining timbers, and one tipple. The plaintiff objected to the introduction of this mortgage because the description therein was vague indefinite and uncertain, and the mortgage was void as to plaintiff, and that the same was not filed for record until 30 days after its date and after plaintiff's right had attached to the iron. The mortgage was executed on January 30, 1903, and filed for record in the probate office on March 23, 1903. The lease was executed January 1, 1903.

Ward & Houghton, for appellants.

Kerf & Haley, for appellee.

SIMPSON J.

This was a suit brought by the appellants against the appellee for the conversion of certain property, with a second count in case. The first point insisted on in the brief of appellant is that the court erred in excluding evidence to the effect that McFarland was indebted to the plaintiff. There was no error in this, as the claim of the plaintiff did not in any manner depend on whether or not McFarland was indebted to him. The plaintiffs' right, under the lease, was to use the property until the ore was all mined from...