Lytle v. Bowdon

COLEMAN. J. In the latter part of November, 1889, one Cameron executed a mortgage, which was duly recorded, on his crop of cotton to be grown the following year, to Samuel Bowdon. There was evidence tending to show that the appellants purchased a bale of cotton raised by the mortgagor on lands which belonged to his sister, but upon which the mortgagor had resided for about four years. There was no positive and direct evidence that the defendant had sold tiie bale of cotton or received anything in exchange for it. The plaintiff sued in assumpsit for money had and received. The cotton was purchased and received by Lytle & Co. in the fall of the year 1890, and the present action was commenced in June, 1891. The defendant requested the court, to charge the jury, 1st, that if the jury believed the evidence, their verdict should be for the defendant; and, second, that it was incumbent on the plaintiff to show, that Lytle & Co. had sold the cotton and received the money for it, or its equivalent. These charges were refused. The mortgagee did not under the mortgage acquire the legal title to the cotton, so as to enable him to maintain trover or detinue ; Paden & Co. v. Bellenger, 87 Ala. 575; Mayer v. Taylor, 69 Ala. 408 ; Grant v. Steiner, 65 Ala. 499; but he acquired an equitable title sufficient to support the equitable action of assumpsit for money had and received. — 1 Brick. Dig. 140, § 72. The action for money had and received will not lie to recover the value of property, unless there is evidence, that the property has been sold and the money received, or its equivalent, or unless a sufficient time has elapsed to raise the inference that it has been converted into money. — Moody v. Walker, 89 Ala. 619 ; 1 Brick. Dig,, p. 140, § 73. What is a sufficient time to raise such an inference is a question of fact for the jury under all the attending circumstances. Lytle & Co. were merchants. They purchased the cotton in the fall of the year 1890. The suit was instituted in June 1891. It was for the jury to say whether there had been a conversion of the cotton into money or its equivalent. There was evidence which authorized the [364] jury to infer that the cotton had been converted into money. The second charge requested was calculated to mislead the jury and there was no error in refusing it. The first charge was properly refused, on the facts of the case. The case of Smith, Poley & Co. v. Jernigan, 83 Ala. 256, was an action on an account for the value of the logs rather than for money had and received, and the action began immediately upon the conversion of the logs. The tort was waived, and the defendant treated as a purchaser of the logs. Affirmed.