The trial judge evidently gave the general affirmative charge for the defendant on the theory that the two *Page 58 plaintiffs could not recover jointly because their claims were separate and not joint, and that, not being entitled to recover jointly, they could not recover at all.
We see no answer to that view of the case. It has been settled in this state that there is no community of interest between successive mortgagees of the same property. Crowson v. Cody, 209 Ala. 674 (8), 96 So. 875. "They are neither joint tenants, nor tenants in common, of the property, and must sue separately for injuries to their several interests." Newman v. Tymeson, 13 Wis. 172, 80 Am. Dec. 735; Hill v. Gibbs, 5 Hill (N.Y.) 56.
In such a case — a joint action with an absence of a joint demand founded upon a joint interest — the action must fail entirely. Winter-Loeb Grocery Co. v. Boykin, 203 Ala. 187 (3),82 So. 437; Randolph v. Hubbert, 190 Ala. 610 (1), 67 So. 416.
There is no question here of variance between allegations and proof. As declared in Winter-Loeb v. Boykin, supra, there is simply a failure of proof, of which advantage must be taken by an appropriate instruction to the jury, as was done in this case.
When the general affirmative charge is requested and given, the trial court is not bound by the theory upon which counsel base their request; and, conceding that counsel did not have in mind, and did not clearly state to the court, the principle above stated, the court will not be put in error for that reason alone.
The evidence showed no community of interest which would authorize a joint action and joint recovery by these two plaintiffs, and we are constrained to hold that the instruction in question was properly given.
Affirmed.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.
On Rehearing.