Grant v. Steiner , 65 Ala. 499 ( 1880 )

SOMERVILLE, J.

— Under the facts of .this case, as disclosed by the bill of exceptions, the mortgage made by the two Mlartins to Steiner did not convey to him the legal title to the two bales of cotton in controversy. Even if we concede the proposition, that the husband has the authority to mortgage or transfer the rents, income and profits of the wife’s statutory separate estate — a question not necessary to be here decided — the appellee only acquired the equitable, and not the legal title. The mortgage to Steiner was executed in January, 1878, upon a crop which was not then planted, but was to be planted in futuro. It was not then growing, or in esse. It has been repeatedly decided by this court, that such a transfer will not convey a title that would support an action of detinue, trover, or trespass.-^- Rees v. Coats, at the last term; Booker v. Jones, 55 Ala. 266; Abraham v. Carter, 53 Ala. 8. And such seems to be the weight of authority. 1 Jones’ Mort., §§ 150-51; McCaffrey v. Wooden, 65 N. Y. 459; (S. C., 22 Amer. Rep. 644); Williams v. Briggs, 11 R. I. 176; (S. C., 23 Amer. Rep. 518); Benj. on. Sales, § 78; Fonville v. Casey, 4 Amer. Dec. 561, note; Apperson v. Moore, 30 Ark. 56.

The second charge requested by the appellant should have been given, and its refusal is an error which must operate a reversal of the judgment of the Circuit Court.

It becomes unnecessary, under this view of the case, to consider the other questions raised by the record.

Reversed and remanded.