McRight v. Farned

PELHAM, P. J. The appellee foreclosed a mortgage held by him on the appellants’ farm, and purchased the property at the foreclosure sale for a sum in excess of the amount due on the mortgage debt. The appellants brought suit in the court below against the appellee for money had and received, seeking to recover the difference between the amount bid by the appellee at the mortgage sale for said property. The appellee filed four special pleas in answer to the complaint, to which pleas the appellants separately and severally interposed demurrers that were overruled by the. court, whereupon, on account of such adverse rulings, the appellants took a non-suit with a bill of exceptions, and assign here as error the court’s action in overruling the demurrers to the said pleas. The special pleas set up a failure of consideration in that the appellants converted to their own use the crops grown on the mortgaged land under a claim of ownership while in possession of the lands, claiming them adversely to the appellee. In different pleas the appellee offered to recoup and set off the value of said crops gathered by the appellants against the demand sued for. (1, 2) Construing the special pleas most strongly against the pleader, it does not appear that the crops were growing crops constituting part of the freehold, or had not been severed, at or [448] before the time of the forfeiture and sale. If severed in the course of husbandry, the crops were converted into chattels, and did not constitute part of the freehold and pass with it to the mortgagee when he became the purchaser of the land at the mortgage sale, but belonged to the mortgagors without any liability upon their part to account for them. — Jones on Mortgages, § 697. (3) The first special plea (numbered 2) seeks to set up as a cross-action the taking or conversion of the crops by the mortgagors while in'possession, of the land and crops, holding and claiming them adversely to the appellee. It is settled by the decisions of this state that a personal action for the taking, conversion, or detention of crops, or other things severed, will not lie even at the suit of the owner of the land not in possession and whose right lies in entry, against the adverse possessor who gathers or severs the crop while in such adverse possession under claim of ownership.—4 Enc. Dig. of Ala. Repts. 597, § 5; Cooper v. Watson, 73 Ala. 252; Beatty v. Brown, 76 Ala. 267; Stewart v. Tucker, 106 Ala. 319, 17 South. 385. (4) The plaintiffs below, appellants here, having suffered a nonsuit on account of the adverse ruling of the court in passing on the demurrers to the special pleas that are not in harmony with our holding, they are entitled to review those rulings on this appeal (Berlin Mch. Works v. Ewart Lumber Co., 184 Ala. 272, 63 South. 567), and the judgment must be reversed, and the cause remanded, to the end that the court below revise its rulings accordingly. Reversed and remanded.