Carleton v. Kimbrough , 150 Ala. 618 ( 1907 )

ANDERSON, J.

The plaintiff brought an action of detinue, for one bale of cotton against Kate Grayson. The defendant disclaimed under section 2634 of the Code of 1896, and suggested Crissie Carleton, the appellant, as the right defendant. Crissie Carleton appeared and gave bond as is required by the statute, and thus became the real and only party defendant to said action of detinue.

The plaintiff, in order to receover, was put to proof of the legal title, which he attempted by introducing a mortgage given to him by the said Grayson. The undisputed evidence shows that Carleton furnished the land and. team and Grayson the labor. Therefore, under section 2712 of the Code of 1886, Grayson, the mortgagor, had but a' lien, and not such a property in the cotton as to convey a legal title to Kimbrough under the mortgage, and the trial court erred in not excluding the mortgage, upon motion of the appellant. Bectioii 1064, making mortgages on unplanted crops given after the 1st of January good conveyances of the legal title, applies to those who would have the legal title after the crop was planted, and not mere lienors.

It is insisted by counsel for appellee that any ruling of the court against the appellant was error without injury, as she had no standing in court, and that the trial court erred.in not dismissing her jdaim, because she had filed no affidavit. The authorities. evitad apply to the trial of the right of property, where affidavit is required by claimant to give jurisdiction. There is no such requirement under section 2634 of the Code of 1896 as to the suggested defendant in detinue.

■ The judgment of the circuit court is reversed, aud the cause is remanded.

Reversed and remanded.

Tyson, C. J., and .Dowdell and McClellan, JJ„ concur.