The general rule is, that to maintain detinue, the plaintiff must, at the commencement of the action, have a general or special property in the goods sought to be recovered. 1 Chitty’s Pl. 121. Possession alone will entitle him to recover against a mere wrong-doer, not showing any right of property in himself. Dozier v. Joyce, 8 Porter, 303; Stoker v. Yerby, 11 Ala. 332; Miller v. Jones, 26 Ala. 247. Possession, and the right of possession, accompanied by a lien for the payment of money advanced, or a debt previously contracted, entitles the plaintiff to maintain the action against any one disturbing his possession. Bryan v. Smith, 22 Ala. 534; Desha v. Pope & Son, 6 Ala. 690. Tested by these principles, there was no error in the charge of the court, that if the plaintiff was to have the possession of the cotton, until he was paid for supplies furnished the persons by whom it was raised, and it had actually been delivered to him, he had such title as would support the action.
2. The instrument under which appellant deduced title to the cotton in controversy, as transcribed in the bill of exceptions, consists of two parts. The first of these is a mortgage. By apt words, it transfers title to the things on which it is to operate; its consideration is the security of a debt owing by the mortgagor to the mortgagee ; it is subject to the condition, that it is to be void on the payment of this debt; it contains a power to the mortgagee of making sale of the things conveyed, if default is made by the mortgagor in the payment of the debt. Thus, it has every essential and characteristic of a mortgage. The second part is a promissory note of the mortgagor, expressing the consideration, and declaring the facts necessary to the creation of a statutory lien, under the statute attaching liens to debts contracted for advances to make crops. R. C. §§ 1858-60. This statutory lien is “lost and forfeited,” in the words of the statute, by a failure to record this note within *443sixty days. A failure to record the mortgage renders it inoperative, only against creditors and purchasers without notice ; as to all other persons, it is valid and operative. It is not an objection to the operation of the instrument as a mortgage, that, as to the growing crop, it could have been made available, either as a mortgage, or as a statutory lien. It is not of uncommon occurrence, that contracts may operate in different modes, or that deeds may enure in different ways. When the contract or deed is so made, the promisee, or grantee, generally has an election as to the way in which he will take it. We are not sure, and do not wish to be understood as intimating an opinion, that under the evidence the instrument could have operated a statutory lien, A comparison of the evidence most favorable to the appellant, with the statute, presents difficulties in giving it such an operation, on which it is not necessary for us now to pass. We decide only, that if the instrument is capable of operating a statutory lien, it is also capable of operating as a mortgage, and that the circuit court erred in charging the jury, that it is not a mortgage, but a crop lien only.
3. A verbal agreement between landlord and tenant, or between tenants in common of a growing crop, that the landlord, or a co-tenant, shall have a lien on the crop, for supplies furnished the tenant, or a co-tenant, is valid, and operative against all persons but bond fide purchasers without notice. Such an agreement is not offensive to any provision of our statute of frauds. Morrow v. Turnley, 35 Ala. 131. There was, therefore, no error in refusing the first charge requested by the appellant.
4. The appellant does not stand in the position of a bond fide purchaser. He is a mortgagee, and the consideration of his mortgage is the security of an antecedent debt of the mortgagor. Such a mortgagee is affected by all the equities which would prevail against the mortgagor. Whatever infirmity, or incumbrance of title, exists against the mortgagor, exists against the mortgagee. Wells v. Morrow, 38 Ala. 125; Story on Sales, § 313.
5. When a verbal agreement for a lien on goods or chattels is made, notice of a mortgage or other charge, made subsequently to the creation of the lien, cannot affect the right of the lien holder to take possession, when under the terms of the agreement he becomes entitled thereto. If, in pursuance of the agreement creating the lien, he obtains possession, he has a right to detain, until the lien is satisfied. If his possession is disturbed, he may maintain detinue against any one into whose possession the goods or chattels pass. The third charge requested by the appellant was, therefore, properly refused.
*4446. The fourth charge requested by appellant was, also, properly refused. It proceeds on the supposition, that tenants in common of a growing crop cannot make a partial severance or division, so as to vest title in each tenant to the share allotted him. They may make such division or severance, as the crop is gathered; and as the division is made, each one holds in severalty the share allotted him, while they remain tenants in common of the part of the crop not divided.
7. The sixth charge was properly refused. It is certainly true, as a general rule, that to maintain detinue, the plaintiff must have the entire legal title to the chattels sued for. But possession will entitle him to maintain the action, against one who does not show a better right to the possession. An outstanding title in a stranger cannot be set up by the defendant to defeat the plaintiff’s right to have the chattels restored to his possession, unless he connects himself with that title. Sims v. Boynton, 32 Ala. 353. There was evidence tending to show that the bale of cotton was in the possession of the plaintiff when it was taken by the defendant, and that it was delivered to him on a partial division of the cotton, had with Turner and Harbinson, two of the tenants. The only right or title to the cotton asserted by the defendant was derived from Turner. If Pearman, the other tenant, has any interest in, or right to the cotton, the defendant shows no connection with this right, and cannot set it up to defeat the plaintiff’s recovery on his possession.
8. The charge requested, that if the agreement between the plaintiff and Pearman and Plarbinson was made in December, 1869, and was not to be performed within one year from the making thereof, it was void, and the plaintiff could not recover on any right growing out of it, was properly refused. If the cotton in controversy was delivered to the plaintiff in part performance of the contract, as there was evidence tending to prove, the plaintiff was entitled to recover, though the contract was verbal, and not to be performed in one year. The statute of frauds avoids executory, not executed contracts. Independent of this consideration, it! is not for a mere stranger to a contract, as is the defendant to the contract between plaintiff and his tenants, to question its validity, because it is offensive to the statute of frauds. The parties may elect to treat it as valid, and to perform it. If they should, others cannot avail themselves of an objection to the contract, which they have waived.
For the error in the second charge given by the court, the judgment is reversed, and the cause remanded.