Stout v. Kinsey

STONE, C. J. The facts of this case are uncontroverted. The mule, the subject of the suit, was the property of Josephine Kinsey, the plaintiff, her statutory separate estate. [547] Stout, the defendant, had a statutory lien on the mule for five dollars, for the service of the jack which served the mare. Code of 1886, § 3091. W. L. Kinsey, plaintiff’s husband, without his wife’s concurrence, sold and delivered the mule to Stout, in payment of the lien-claim of five dollars, and on consideration of forty-five dollars additional, entered as a credit on an indebtedness of the said W. L. to Stout. No money was paid or promised. Mrs. Kinsey was not present, and knew nothing of the trade when it was made. On the next morning, she told Stout “it was all right.” The sale was evidenced by no writing. The legal title did not pass out of Mrs. Kinsey by this sale.—Williams v. Auerbach, 57 Ala. 90; Evans v. English, 61 Ala. 416; Pollak v. Graves, 75 Ala. 347. It is contended for appellant, that because Stout had a lien on the mule for five dollars, and had acquired possession of it, the present suit can not be maintained, without first paying or tendering the five dollars. Gafford v. Stearns, 51 Ala. 434, is relied on in support oí this contention. In that case, the lienor had delivered the possession of the bale of cotton, the subject of the suit, to the lienee; and this, it was held, conveyed such right to the possession as would maintain detinue. In this case, Stout, acquired-no possession from Mrs. Kinsey. The authority does not support the argument. No significance can be attached to the remark made by Mrs. Kinsey the next morning. It was without consideration, and, if necessary, we would refer it to marital control. Affirmed.