Columtras Iron Works Co. v. Renfro Bros.

BRICKELL, C. J. The statutory trial of the right to property levied on by legál process has, from its origin, been regarded as merely a cumulative remedy, not superseding the ordinary common law actions 'of trespass, trover, or detinue. It can be maintained only where, at common law, these actions could have been maintained, and hence, in accordance with the rules applicable to these actions, the claimant must have a legal title to support it, or actual possession, which is but evidence of such title, and must recover upon the strength of his own title.—Lehman v. Warren, 53 Ala. 535. It is the settled doctrine in this court, that a mortgage of an unplanted crop does not pass to the mortgagee a legal title to the crop as it may be planted, or as it may come into existence. In a court of equity it operates by way of present contract, taking effect and attaching to the crop when, and as soon as it comes in esse, creating a right the court will enforce and protect against all others than bona fide purchasers for value. Abraham v. Carter, 53 Ala. 8; Booker v. Jones, 55 Ala. 266; Rees v. Coats, 65 Ala. 256; Grant v. Steiner, Ib. 499. Such a mortgagee, not having a legal title, having only an equity, can not maintain a trial of the right of property, if, when the crop comes into existence, a creditor of the mortgagor should seize it on legal process; his remedy for the recovery of the things ■m specie is in equity exclusively. — Stern v. Simpson, 62 Ala. 194; Grant v. Steiner, supra. While the mortgage of an unplanted crop operates only by way of contract, creating originally merely an equity, yet, after the crop comes into existence, the mortgagor may by a new act [580] intended to render the mortgage effectual, make it valid and operative, vesting the legal title.—Abraham v. Carter, supra; Jones v. Richardson, 10 MetC. 481; Head v. Goodwin, 37 Me. 181. The crop being m esse, a visible, tangible, actual chattel, the subject of immediate sale or of transfer, the mortgagor may ratify and confirm his contract, and by ratification and confirmation may convert the equity into an alienation and transfer of the chattel. The character of the new aet, to which this operation can be ascribed, has been the subject of much discussion ; but that a delivery of the thing or chattel itself is unequivocal, vesting the legal title, has not been doubted. The delivery may be to the mortgagee pérsonally, or it may be to his agent, for a delivery to an agent is the equivalent of a delivery to the principal.—Jones on Chat. Mort. § 180. And a delivery to a carrier for the purpose of transportation to the mortgagee, will operate to vest title in the latter. Such is the settled doctrine, where there is an executory agreement for the sale of undistinguished or unspecified chattels, or, as between vendor and ven-dee, or as against third persons, delivery may be essential to the completion of a sale. The delivery to the carrier is such an appropriation to the uses of the vendee, that it vests in him immediately, in contemplation of law, the property in the goods.—Benjamin on Sales (1st Ed.), 250; 2 Smith Lead. Cases (7th Am. Ed.), 1193. The mortgage in the present case operated originally merely by way of contract, and created an equity only. But after the crop had come into existence, the delivery to the agent of the railroad company for transportation to the mortgagee was a new act in ratification and confirmation of the mortgage, passing the legal title. The delivery was complete before the execution of the appellants came to the hands of the sheriff, preventing the acquisition of a lien which could prevail over the prior equity and the legal title of the claimants. The delivery was not qualified, or its effect lessened, because the agent of the railroad company gave the mortgagor a receipt for the cotton. The shipment and consignment the mortgagor instructed should be made to the mortgagee, and the receipt was simply evidence of the extent to which he had complied with the obligation of the mortgage. The rulings of the Circuit Court were in conformity to these views, and its judgment must be affirmed. *