Arnold v. Sutherlin

114 So. 140, 216 Ala. 546, 1927 Ala. LEXIS 274

• Court: Supreme Court of Alabama
• Decided: October 13, 1927
• Docket: 7 Div. 766.
• Status: Published

Opinion

ANDERSON, C. J.

It is unquestionably the law that to support a count in trover the right of property, general or special, and possession or an immediate right of possession, must concur in the plaintiff at the time of the conversion. So, also, when the plaintiff relies upon a mortgage as the source of title, he must show that the conversion occurred after the law day of the mortgage, that is, after the plaintiff, under the terms of the mortgage, had the right to take or seize the property. Johnson v. Wilson & Co., 137 Ala. 468, 34 So. 392, 97 Am. St. Rep. 52, and cases there cited. It is true'the notes which the mortgage in the case at bar were given to secure were not payable until November 1, and the proof shows that appellant converted the cotton in October; yet said mortgage gave the appellee the right to seize the property whenever he deems himself insecure, and which is different from the mortgage considered in the Johnson Case, supra. We therefore hold that the trial court did not err in rendering judgment for the plaintiff under the first or trover count of the complaint, and which is the only error assigned.

Appellant’s counsel argue and insist upon error upon the part of the trial court in the fixation of the amount due upon the mortgage by allowing the credits for a certain mule and other cotton as per the price brought at mortgage sale, rather than the value fixed by the jury in a former detinue suit; but whether this was erroneously done or not, it merely went to the amount due upon the mortgage, and neither method would have extinguished the mortgage debt and thus prevented a recovery, and, as above noted, the assignment of error went to the rendition of a judgment for the plaintiff, and not the amount of same or the improper allowance of credits on the mortgage debt.

The judgment of the circuit court is affirmed.

Affirmed.

SOMERVILLE, THOMAS, and BROWN, JJ., concur.