JUDGE, J.
1. In Rupert & Cassity v. Elston's Executor, (35 Ala. 79,) our statutes and previous decisions, relating to the abatement and revivor of actions, are reviewed. Stoke, J., in delivering the opinion of the court in that case, said: “ These statutes were construed at an early day; and it was held that, in cases where there were more plaintiffs or defendants than one, then the death of a part of the plaintiffs or defendants did not authorize the joining of the representative of a deceased party, as a co-plaintiff or co-defendant with the survivor or survivors. The proper rule, in such case, was said to be, to abate the suit as to the deceased party or parties, and permit the litigation, in case the cause of action survived, to proceed in the names of the surviving parties.—Beebe & Brewer v. Miller, Minor, 364; Gayle v. Agee, 4 Porter, 507 ; Gregg v. Bethea, 6 Porter, 9. The principle thus early settled has withstood the scrutiny of thirty-five years, and has never been departed from. We have no disposition to unsettle a principle which has been so long acquiesced in, and which has so frequently been the basis of judicial action in the courts of original jurisdiction.”
It was contended by counsel in that case, that section 2146 of the Code, relating to the abatement and revivor of actions, had substantially departed from the former statutes on the same subject, and required the establishment of a different rule. But the court held otherwise, and declared that that section of the Code, being general in its terms, [165]*165must receive the same construction in every form of action which survives. We are satisfied with the exposition of the law as made in the case above cited; and it follows, that the court below did not err in refusing to permit the action as against Parker, to be revived against his personal representative.
The argument, that the refusal to permit the revivor deprives the administratrix of the security the law gives her in the statutory bond of the plaintiffs to re-deliver the property sued for, and pay damages for its detention, in case they fail in the action, seems to be. predicated upon the idea, that none but a statutory judgment can be rendered on such a bond, in case of its forfeiture. The fact that, if no statutory judgment can be rendered in such case, the bond may nevertheless, if forfeited, be enforced as a common-law obligation, deprives this argument of its force. Savage v. Gunter, 32 Ala. 467.
2. The record informs us, that the plaintiffs had never been in the actual possession of the vessel sued for, previous to the commencement of the action. Their right to a recovery seems to have been based upon the title alone. A plaintiff in detinue, occupying such a position, must resort to proof of his title, in order to show his right of possession ; (Reese v. Harris, 27 Ala. 301); and in every such case, the defendant may show a superior outstanding title in a third person, without connecting himself therewith, unless he is prevented from so doing by some matter or thing amounting in law to an estoppel; as in Miller v. Jones’ Adm’r, 29 Ala. 174, and Gardner v. Boothe, 31 Ala. 186.
When the case of Miller v. Jones, above cited, was first before this court, Goldthwaits, J., in delivering the opinion of the court, said: “ It is certainly true, that in the action of detinue, the plaintiff may recover upon possession alone, against any one who has not as good a right to the possession as himself. He recovers on the right he has to have the thing delivered to him. Where the possession alone would entitle the plaintiff to a recovery, we do not see how the other party could defeat it by proving title in a stranger, unless he connected himself with it, thus proving that he had the better right. But, where the claim is [166]*166based, not upon possession, but on the title, there the claim may always be disproved by showing that the title is not in the plaintiff, but in another. Thus, if the plaintiff was to show that he was the owner at a period anterior to the suit, the defendant might well show that he had parted with the title before the commencement of the action, and thus defeat a recovery, not by showing any right in himself, but by proving that the other party did not occupy a position that would entitle him to recover.”—26 Ala. 247.
This exposition of the law meets with our approval, and is not in conflict with any of the previous or subsequent decisions of this court upon the same question.—Sims v. Boynton, 32 Ala. 353, and cases there cited; Hall v. Chapman's Adm’rs, 35 Ala. 553; Gardner v. Boothe, 31 Ala. 186; Lucas v. Daniels, 34 Ala. 188. It results, that the court below erred in ruling out the evidence offered by the defendant to establish a title to the property sued for in the administratrix of Parker.
3. The bill of exceptions does not purport to set out the whole of the evidence which related to the title of the plaintiffs ; and therefore, we can not undertake to pronounce whether it was superior or inferior to the outstanding title proposed to be shown by the defendant. But, if, on another trial, the plaintiffs’ title should be made to rest exclusively on the mortgage to them from Burroughs, and no actual notice of its existence should be shown to Parker prior to the accrual of Parker’s title, then the title of the latter, as set out in the bill of exceptions, if real and bona fide, would, in law, be the superior title.
An act of congress of July 29, 1850, provides as follows : “No bill of sale, mortgage, hypothecation, or conveyance of any vessel, or part of any vessel of the United States, shall be valid against any person, other than the grantor or mortgagor, his heirs and devisees, and persons having actual notice thereof ; unless such bill of sale, mortgage, hypothecation, or conveyance, be recorded in the office of the collector of the customs where such vessel is registered or enrolled: Provided, that the lien by bottomry on any vessel created during her voyage, by a loan of money or materials, necessary to repair or enable such vessel to prosecute [167]*167a voyage, shall not lose its priority, or be in any way affected by the provisions of this act.—9 U. S. Stat. 440 ; 1 Brightly’s Digest, 833, § 44.
The provisions of the act of congress above quoted, it has been held, come within the power conferred by the constitution upon congress, to regulate commerce.—Mitchell v. Steelman, 8 California, 363, and cases there cited.
The mortgage of the plaintiffs was executed and acknowledged before a justice of the peace in Mobile county, and recorded in the office of the probate judge of said county, but no where else; nor is the date of its admission to record shown. To defeat subsequent creditors and purchasers without “ actual notice” of its existence, the act of congress, as we understand it, requires that it should have been recorded in the custom-house at Mobile, where it is shown the vessel had been registered.
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JUDGE, J.
1. In Rupert & Cassity v. Elston's Executor, (35 Ala. 79,) our statutes and previous decisions, relating to the abatement and revivor of actions, are reviewed. Stoke, J., in delivering the opinion of the court in that case, said: “ These statutes were construed at an early day; and it was held that, in cases where there were more plaintiffs or defendants than one, then the death of a part of the plaintiffs or defendants did not authorize the joining of the representative of a deceased party, as a co-plaintiff or co-defendant with the survivor or survivors. The proper rule, in such case, was said to be, to abate the suit as to the deceased party or parties, and permit the litigation, in case the cause of action survived, to proceed in the names of the surviving parties.—Beebe & Brewer v. Miller, Minor, 364; Gayle v. Agee, 4 Porter, 507 ; Gregg v. Bethea, 6 Porter, 9. The principle thus early settled has withstood the scrutiny of thirty-five years, and has never been departed from. We have no disposition to unsettle a principle which has been so long acquiesced in, and which has so frequently been the basis of judicial action in the courts of original jurisdiction.”
It was contended by counsel in that case, that section 2146 of the Code, relating to the abatement and revivor of actions, had substantially departed from the former statutes on the same subject, and required the establishment of a different rule. But the court held otherwise, and declared that that section of the Code, being general in its terms, [165]*165must receive the same construction in every form of action which survives. We are satisfied with the exposition of the law as made in the case above cited; and it follows, that the court below did not err in refusing to permit the action as against Parker, to be revived against his personal representative.
The argument, that the refusal to permit the revivor deprives the administratrix of the security the law gives her in the statutory bond of the plaintiffs to re-deliver the property sued for, and pay damages for its detention, in case they fail in the action, seems to be. predicated upon the idea, that none but a statutory judgment can be rendered on such a bond, in case of its forfeiture. The fact that, if no statutory judgment can be rendered in such case, the bond may nevertheless, if forfeited, be enforced as a common-law obligation, deprives this argument of its force. Savage v. Gunter, 32 Ala. 467.
2. The record informs us, that the plaintiffs had never been in the actual possession of the vessel sued for, previous to the commencement of the action. Their right to a recovery seems to have been based upon the title alone. A plaintiff in detinue, occupying such a position, must resort to proof of his title, in order to show his right of possession ; (Reese v. Harris, 27 Ala. 301); and in every such case, the defendant may show a superior outstanding title in a third person, without connecting himself therewith, unless he is prevented from so doing by some matter or thing amounting in law to an estoppel; as in Miller v. Jones’ Adm’r, 29 Ala. 174, and Gardner v. Boothe, 31 Ala. 186.
When the case of Miller v. Jones, above cited, was first before this court, Goldthwaits, J., in delivering the opinion of the court, said: “ It is certainly true, that in the action of detinue, the plaintiff may recover upon possession alone, against any one who has not as good a right to the possession as himself. He recovers on the right he has to have the thing delivered to him. Where the possession alone would entitle the plaintiff to a recovery, we do not see how the other party could defeat it by proving title in a stranger, unless he connected himself with it, thus proving that he had the better right. But, where the claim is [166]*166based, not upon possession, but on the title, there the claim may always be disproved by showing that the title is not in the plaintiff, but in another. Thus, if the plaintiff was to show that he was the owner at a period anterior to the suit, the defendant might well show that he had parted with the title before the commencement of the action, and thus defeat a recovery, not by showing any right in himself, but by proving that the other party did not occupy a position that would entitle him to recover.”—26 Ala. 247.
This exposition of the law meets with our approval, and is not in conflict with any of the previous or subsequent decisions of this court upon the same question.—Sims v. Boynton, 32 Ala. 353, and cases there cited; Hall v. Chapman's Adm’rs, 35 Ala. 553; Gardner v. Boothe, 31 Ala. 186; Lucas v. Daniels, 34 Ala. 188. It results, that the court below erred in ruling out the evidence offered by the defendant to establish a title to the property sued for in the administratrix of Parker.
3. The bill of exceptions does not purport to set out the whole of the evidence which related to the title of the plaintiffs ; and therefore, we can not undertake to pronounce whether it was superior or inferior to the outstanding title proposed to be shown by the defendant. But, if, on another trial, the plaintiffs’ title should be made to rest exclusively on the mortgage to them from Burroughs, and no actual notice of its existence should be shown to Parker prior to the accrual of Parker’s title, then the title of the latter, as set out in the bill of exceptions, if real and bona fide, would, in law, be the superior title.
An act of congress of July 29, 1850, provides as follows : “No bill of sale, mortgage, hypothecation, or conveyance of any vessel, or part of any vessel of the United States, shall be valid against any person, other than the grantor or mortgagor, his heirs and devisees, and persons having actual notice thereof ; unless such bill of sale, mortgage, hypothecation, or conveyance, be recorded in the office of the collector of the customs where such vessel is registered or enrolled: Provided, that the lien by bottomry on any vessel created during her voyage, by a loan of money or materials, necessary to repair or enable such vessel to prosecute [167]*167a voyage, shall not lose its priority, or be in any way affected by the provisions of this act.—9 U. S. Stat. 440 ; 1 Brightly’s Digest, 833, § 44.
The provisions of the act of congress above quoted, it has been held, come within the power conferred by the constitution upon congress, to regulate commerce.—Mitchell v. Steelman, 8 California, 363, and cases there cited.
The mortgage of the plaintiffs was executed and acknowledged before a justice of the peace in Mobile county, and recorded in the office of the probate judge of said county, but no where else; nor is the date of its admission to record shown. To defeat subsequent creditors and purchasers without “ actual notice” of its existence, the act of congress, as we understand it, requires that it should have been recorded in the custom-house at Mobile, where it is shown the vessel had been registered. The alleged mortgage from Burroughs to Parker, though subsequent in date, is averred to have been thus recorded, which made the lien created by it perfect, and superior to the lien of the plaintiffs under the mortgage to them; and in addition to this, it was proposed to be shown by the defendant, that Parker had acquired the absolute title to the vessel, by a purchase thereof at a sale under execution against Burroughs in the State of Louisiana.
4. In the admission of the evidence of the sale of the vessel by the plaintiffs, and its purchase by the defendant Poster, after the plaintiffs had acquired the possession thereof under the bond given by them in the action, the court erred. This evidence was wholly irrelevant, under the pleadings in the case, and illegal for the purpose for which it was admitted.
5. It appears from the record, that no pleas were filed in writing, but that the general issue only was considered as pleaded. The general issue in the action of detinue, is non detinct.—3 Chitty’s Pl. 1023. This plea puts in issue the right of the plaintiff to recover. As was held by this court, in Walker v. Fenner, (20 Ala. 192,) to entitle a plaintiff in detinue to recover, he must show that the defendant, either at the time of the demand made, or, in the event there was no demand, at the time the writ was sued out, had the ac[168]*168tual possession, or the controlling power over the property; unless, having the possesion anterior to such demand or suit, he has wrongfully, or to elude the plaintiff’s action, parted with it; or unless he holds it under a contract of bailment, the terms of which he violates by refusing to re-deliver it.—See, also, McArthur v. Carrie’s Adm’r, 32 Ala. 75 Fenner v. Kirkman, 26 Ala. 650; Harris v. Hillman, 26 Ala. 380. Such being the well settled law, the circuit court erred in the qualification given to the charge requested by the defendant.
As what we have said will probably be decisive of the case on another trial, we deem it unnecessary to notice any other question presented by the record.
Judgment reversed, and cause remanded.