Defendant in the trial court had possession and a lien as provided by section 4743 of the Code. This section provides that "the laborer (defendant) shall have a lien upon the crop produced by his labor for the value of the portion of the crop to which he is entitled," meaning entitled by the terms of the contract between him and the landowner. The character of the lien is not defined. We are left to define it according to common-law principles. We think the lawmakers did not intend an equitable lien, for such liens are raised by implication. It is of the essence of an equitable lien that as long as the lien continues the possession of the thing subject to the lien remains with the person who holds the proprietory interest subject to the incumbrance. In this respect the equitable lien differs from a common-law lien, "which is simply a right to retain possession of the chattel until some debt or demand due the person thus retaining is satisfied; and possession is such an inseparable element that, if it be voluntarily surrendered by the creditor, the lien is at once extinguished." 3 Pom. Eq. Jur. (4th Ed.) § 1233. To the same effect is Voss v. Robertson,46 Ala. 483. The laborer in this case is the creditor, and the statute gives him a lien. It may be that the Legislature did not intend to concede so much to the laborer, whose contract it had changed, but this is what it has done, and this court in more than one case has so decided. Why now should the lien and its necessary incidents be denied? This court, by its present Chief Justice, has said that the laborer "was the legal custodian or bailee of the crop, even if plaintiff (who had furnished land and team) was the owner, and was not a tort-feasor until put in default" (Williams v. Lay, 184 Ala. 54,63 So. 466), though just how he can be put in default except by a tender of the wages due does not appear. Why is this case, as well as Beck v. Crow, 204 Ala. 295, 85 So. 489, overruled in effect? The statute makes a contract for the parties in lieu of one they have made for themselves. It takes away the laborer's title, but leaves him with a lien. Conceding the right of the Legislature to do this, why now should the laborer be deprived of his lien, or that possession which is a necessary incident of his lien? If the cases to which I have referred mean anything, they mean that the laborer has the right to the possession, and so the court has held heretofore, and I can see no good reason for a change of heart or mind. With the policy of the statute this court is not concerned.
Now to establish plaintiff's right to recover in the action of detinue it is necessary for him to show that he has, not only a general or special property in the chattel sued for, but he must show a right to the immediate possession. Numerous authorities to this effect are noted in 5 Michie's Digest of Alabama Reports, at the top of page 64. Cases are cited in the prevailing opinion to the effect that detinue cannot be maintained on an equitable title, seeming to overlook the fact that plaintiff appellee is not seeking to maintain, but only to defend against, an action of that character.
These observations may appear to be rather elementary in their nature, but in the circumstances reference to them seems necessary.
SOMERVILLE and GARDNER, JJ., concur in the foregoing dissent. *Page 449