Rogers v. Whittle

BROWN, J. (1-3) The gist of the action of detinue is the wrongful detention of the property of the plaintiff by the defendant ; and to entitle the plaintiff to recover he must not only show *552 general or special property in the chattel, but he must be entitled to the immediate possession. — Salter v. Pearce, 4 Ala. 669; Oliver v. McClellan, 21 Ala. 675; Reese v. Harris, 27 Ala. 301. And where two parties join as plaintiffs in an action at law, both must be entitled to recover or neither can recover. — McLeod v. McLeod, 73 Ala. 42; McCall v. Jones, 72 Ala. 373; Lovelace v. Hutchinson, 106 Ala. 425, 17 South. 623; Prestwood v. McGowin, 128 Ala. 277, 29 South. 386, 86 Am. St. Rep. 136; Kelly v. Kelly, et al., 9 Ala. App. 306, 63 South. 740. (4, 5) While the evidence on the part of the plaintiffs shows that the property was the joint property of the plaintiffs, that offered by the defendant tended to show that the plaintiff Z. D. Rogers had pledged the property to secure a debt due from him to the defendant, and for this purpose the property was delivered to the defendant, with the agreement that defendant would pay a stipulated sum per month as rent therefor; that this pledge was subsequently embodied in a writing recognizing the defendant’s rightful possession of the property. This pledge, if its terms were in no way breached, conferred upon the defendant the right to retain the possession of the property pledged, as against the pledgor, Z. D. Rogers. — Noles v. Marable, 50 Ala. 366; Bryan v. Smith, 22 Ala. 534; Snellgrove v. Evans, 145 Ala. 600, 40 South. 567; 35 Cyc. 787. The defendant being entitled to the possession against Z. D. Rogers, the joint owner with Z. D. Rogers could not maintain an action of detinue for the recovery of the prop erty. — Smith v. Rice, 56 Ala. 417. What we have said is sufficient to show that proof of the indebtedness due from Rogers to the defendant was competent. (6) The plaintiff Rogers testified as to the value of the property, and it was competent for the defendant to show on cross-examination of Rogers that he had made a contradictory statement as to its value. This evidence was admissible for the purpose of impeaching the credibility of the witness. (7-9) The obligation of Judge Crowley guaranteeing the payment of the rent- by Whittle if Rogers would give the mortgage was a sufficient consideration to sustain the mortgage, if any other consideration than the debt which it secured was necessary. Furthermore, conceding that the mortgage was without consideration, the paper was an admission by Rogers of the indebtedness, and was competent evidence. The ground of objection specified was that the paper was “irrelevant, illegal, and *553 immaterial.” This was a waiver of all other grounds. — McDan iel v. State, 97 Ala. 14, 12 South. 241. (10, 11) The rule as to the measure of proof necessary to determine an issue in civil trials is that the jury must be reasonably satisfied from the evidence (L. & N. R. R. Co. v. Sullivan & Co., 126 Ala. 103, 27 South. 760) ; and while the charge given at the instance of the defendant is not technically a correct statement of the rule, we are of opinion that the charge was, at most, calculated to mislead, and could have been properly refused. However, the judgment will not be reversed for giving the charge. — Daniel v. Bradford, 132 Ala. 262, 31 South. 455. Affirmed.