M. E. Donaldson Mercantile Co. v. First Nat. Bank

ANDERSON, C. J. This was an action of trover for the conversion of certain cotton grown by one Butler on the land of one Childre. The plaintiff introduced a mortgage on the crop given it by Butler. The defendant introduced a mortgage given it by said Butler and indorsed by the landlord, Childre; also; a mortgage given by Butler to the landlord, Childre, and assigned by Childre to it. These last two mortgages were subsequent to the date and recordation of the plaintiff’s mortgage; therefore the plaintiff established a superior title to the cotton. The defendant insists, however, that Childre had a landlord’s lien on the cotton superior to the mortgage of the plaintiff and which was either assigned to it, or if not, that the cotton was taken under the direction and instruction of the landlord, Childre. It may be questionable if the advances were so made to the tenant as to make Childre responsible and thus create in his behalf a lien; hut this fact we may concede, if Childre or the defendant, as assignee, had such a lien, the statute (section 8804 of the Code of 1923) gives the remedy for the enforcement of said lien and they had no right because of such a lien to convert the cotton and then resort to said lien either in justification or mitigation of the damages in this action. True, trover is an equitable action, but a tort-feasor cannot rely upon an equitable defense. Tbe defendant, having acquired the cotton tortiously, could not reply upon the equitable title of the landlord. Dean & King v. Elyton Land Co., 113 Ala. 276, 21 So. 213; Folmar v. Copeland, 57 Ala. 588; East v. Pace, 57 Ala. 521; Banks v. Windham, 7 Ala. App. 616, 62 So. 297. This is unlike a case where there has been a voluntary surrender of the property to the equitable holder of the lieu. Abraham v. Carter, 53 Ala. 8. Here there was no proof of a voluntary surrender of the cotton to the lienholder, but tbe proof shows that it, or some of it, had been surrendered to the plaintiff by Butler. The trial court did not err in giving the plaintiff’s- requested charge 1- and the judgment of the circuit court is affirmed. Affirmed. SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.