In order that an equitable mortgagee of crops may acquire the legal title thereto by delivery from the mortgagor, it is obvious that such delivery must be made before the mortgagor has transferred the legal title to a third person. In the instant case, the plaintiff's mortgage of January 10, 1914, vested in him the entire legal title of the mortgagor, and that result was not affected by any subsequent action of the mortgagor, whether by executing other mortgages, or by selling or delivering the crops to others.
It is insisted, however, that when the prior legal mortgagee, Yarbrough, transferred his mortgage to the plaintiff, viz. on November 25, 1914, the claimant had already bought the cotton and was in its adverse possession; so that, under the rule against maintenance, the plaintiff could not maintain a suit for possession in his own name. Ala. St. Bank v. Barnes,82 Ala. 607, 2 So. 349. But the record does not show any more in this regard than a sale by the mortgagor to the claimant of cotton in the hands of the warehouseman, and it does not appear that claimant ever acquired and held such an actual, exclusive adverse possession as would bring the case within the rule against maintenance; nor even that there was a constructive possession by delivery of the warehouse receipts prior to November 25th, whether before or after November 25th, the date of plaintiff's assignment, being left to conjecture merely.
To defeat the operation of plaintiff's assignment by this means, the burden was upon claimant to show its own possession on November 25, 1914, under claim of right, with a repudiation of the mortgagee's right, brought home to the knowledge of the prior mortgagee; for without such notice the possession and claim of a purchaser from a mortgagor does not become adverse to the mortgagee. State v. Conner, 69 Ala. 212.
The fact that the mortgagor, Davidson, gave a second mortgage to claimant, after the execution of the mortgage to plaintiff's assignor, does not convert claimant's prior equitable mortgage into a prior legal mortgage, for this would be to destroy the whole doctrine of priority.
In the original opinion we omitted to notice a contention of claimant, which is again urged upon our attention. The trial court permitted plaintiff to prove the value of the cotton at the time of the trial. Claimant conceives that section 3792 of the Code, providing that in case of an intervening claim by a third person in a detinue suit "the same proceedings must be had as in other trials of the right of property," adopts as the rule for measuring damages the provision of section 6041 of the Code that in case the jury shall find the property levied on to be liable to the satisfaction of the writ, they must assess the value at the time of the interposition of the claim. This contention has been in effect decided adversely to claimant in the case of Slaughter v. Webster, 194 Ala. 642, 70 So. 129. Very clearly section 6041 is not applicable to claim suits in detinue, wherein, with respect to the damages recoverable, the principles of detinue actions prevail.
The application must be overruled.
ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur.