Jordan v. Lindsay , 132 Ala. 567 ( 1902 )

McCLELLAN, C. J.

— We are authorized and required by section 5 of the act of February 18, 1895, to review the finding and conclusion oí the circuit judge, trying this case without a jury, on the evidence though there was no special finding of the facts by the judge. — Acts 1894-5, pp. 586-8.

This is an action of trover prosecuted by Lindsay against Jordan. By the terms of the agreement between Jordan, the owner of the land, and Lindsay, who undertook to cultivate it,—Jordan furnishing the land and the team and Lindsay the labor, the crop to he equally divided,—a contract of hire existed between then)., and not the relation of landlord and tenant or of tenants in common, in the crop. Out of this relation of employer and employe no title in the latter to the crop or any part of it could be evolved; but Lindsay had a lien merely on the crop for the value of the portion of it to which he was entitled, the title to tire crop being- in Jordan. — Code, § 2712. Conceding that the arrangement between Lindsay and Hammond, whereby the latter united his labor with Lindsay’s in making the crop and was to receive onehalf of the one-half to which Lindsay was entitled as against Jordan, put Hammond on the same footing as Lindsay — and it surely could not do more — Hammond himself could not maintain this action for the alleged conversion of the one-fourth part of the crop coming to him because he had no title to it but only'a lien upon it. A lien upon property alleged to have been converted will not support trover. The plaintiff must, have title general or .special to the property. A mere right to charge it under a statutory lien Avill not suffice. As Hammond could not have maintained this suit, of course Lindsay as the assignee, assuming that he was the assignee of Hammond, could not maintain it. —Gill v. State, 124 Ala. 73. The cases of Gardner v. Head, 108 Ala. 619, and Ragsdale v. Kinney, 119 Ala. 454, in so far as they bear upon this subject are unsound and not to be followed. The court, therefore, erred in rendering judgment for the plaintiff. It will be reversed and a judgment will be here entered for the defendant.

Beversed and rendered.