Before the statute, authorizing the interposition of a claim to property levied on by attachment, or execution, and a trial of the right to such property, whether it was in the claimant, or in the defendant in the process, the remedy was by an action of trespass against the officer levying the process, or of trover or detinue, against him, or those obtaining possession from him. The statutory remedy is cumulative, and can be maintained only when one of these actions could be supported at common law. It follows that, as in these actions the plaintiff must have recovered on the strength of his own title, and not on the weakness of the defendant’s, he cannot, in support of a claim under the statute, show that the right and title to the property levied on is in any other person than himself, unless he connects himself and his possession with such title. McGrew v. Hart, 1 Port. 175; Frow & Ferguson v. Downman, 11 Ala. 880; Foster v. Smith, 16 Ala. 192 ; Thomas v. Degraffenreid, 17 Ala. 602.
On a trial of the right of property, the only proper issue is an affirmation by the plaintiff in the process, that the property levied on is subject to the process, and a denial of that fact by the claimant. R. C. § 3017; Langdon & Co. v. Brumby, 7 Ala. 53. Such an issue is sufficiently comprehensive, to authorize the to introduce evidence of *539every fact showing the property liable to the process ; and the claimant to give evidence of every fact showing that there resides in him a superior right to the property. It was never intended the proceeding should be embarrassed by formal pleading, either in the iorm of complaint, or plea, or replication, or rejoinder. The introduction of such pleading tends only to confusion, and to mar the simplicity of the proceeding, as it is authorized by the statute. The affidavit serves its purpose, when with a proper bond by the claimant it arrests the action of the officer, and introduces the claim into court as a pending suit. Its statements can neither enlarge nor narrow the issue, which the statute requires to be made up, and it is not probably required for any other reason than as an affirmation of the good faith of the claimant in instituting the proceeding. We shall consider this case as if the issue had been formed in conformity to the views we have expressed.
The claimants were commission merchants in. the city of Montgomery, and as such received for sale from Fariss & McCurdy six bales of cotton, having made to them advances exceeding its value. They sold the cotton to one Campbell, a cotton buyer, one of the defendants in attachment, and he obtained possession and was about shipping it, when the levy was made. Whether there was a delivery of the cotton to .Campbell, by authority of claimants, was a matter about which the evidence was conflicting. He had not paid for the cotton, and had previously bought cotton of claimants and paid for it.
The court, ex mere motu, charged the jury, if they believed from the evidence that claimants sold the cotton to Campbell for their own account, they must find for the plaintiff. On request of plaintiffs the court charged the jury, if they believed from the evidence that claimants sold the cotton to Campbell, and the proceeds of sale belonged to them, and not to any other person, they must find for the plaintiffs. The court refused, on request of claimants, to charge the jury, if they believed from the evidence .the claimants were commission merchants, and sold the cotton to Campbell, a cotton buyer, and he had not paid for the cotton, he did not acquire ownership thereof. To the charge given, and the refusal to charge, exceptions were reserved. The sale to Campbell was for cash, but according to the usages of trade, he had three days to examine the cotton before paying for it, which had not expired when the levy was made.
The statute (B. C. § 1164) provides: “No cotton sold by commission merchants to brokers or buyers shall be con*540sidered as delivered and the ownership given up until the same is fully paid for.”-' It is a very general rule of the common law, that by the mere contract of sale, the property in the thing sold passes to the vendee, though he is not invested with a right to the possession, if no credit is agreed upon, until he pays or tender's the purchase money. Magee v. Billingsley, 3 Ala. 679. No material act remaining to be done before delivery, to distinguish and identify the thing sold, or to ascertain the price thereof, the sale was perfect, the thing was at the risk of the buyer, and if it perished without fault on the part of the seller, the buyer was bound to pay the price. If the sale was not on credit, the vendor had the right to retain possession until the price was paid. This right was lost by a surrender of possession to the vendee. Story on Sales, §§ 286-88. The statute to which we have referred was intended to operate a change of these common law rules, when a sale of cotton was made by a commission merchant to a broker or buyer, and to substitute as the condition on which the title should be transferred the full payment of the price. Until then property in the cotton is not changed. The vendor, if a commission merchant, retains the title he had before and at the time of the contract of sale, and the buyer acquires only a right to complete the purchase, and invest himself with the title, by the payment of the price. This seems to us the only meaning of which the words of the statute are susceptible, and that such was the intention of the legislature is clear, when the statute as it was originally passed, and as it was subsequently modified, is examined. The original statute was approved February 10th, 1852, and may be found in Pamph. Acts of 1851-2, p. 44. The first section is in these words: “ That from and after the passage of this act, all cotton sold by commission merchants to brokers or buyers, shall not be considered as delivered and the ownership given up until the same shall be fully paid for; any order for the cotton, law, custom or usage to the contrary notwithstandingThe last clause of the section was omitted in revising the Code, but its omission does not lessen its significance in determining the intention of . the legislature, or in fixing the meaning of the words of the statute. In 1858 (Pamph. Acts, 1857-8, p. 58), a statute was passed effecting a modification of this general law, so far as sales of cotton in the city of Mobile are concerned, providing that on such sales by a commission merchant or factor, the sale was complete, and the legal title vested in the purchaser, when the cotton was delivered, or an order on a wai'ehouseman, with whom it was stored, was *541given to the purchase!*, but reserving to the seller for fifteen days a lien on the cotton for the price, paramount to any sale or transfer by the purchaser. This modification proceeds on the theory of the general law we have expressed— that when a sale of cotton was made by a commission merchant to a broker or buyer, the title remained as it was before the sale, unaffected by it, until the purchase money was fully paid, and that the buyer acquired by the contract a mere right to invest himself with the title on paying or tendering the purchase money. It is not a mere lien, as at common law, which remains in the seller, continuing so long only as he retains possession, but it is the title, absolute, unqualified, unaffected by the contract of sale, which can be divested only by paying or tendering the purchase money. It was probably found the law did not operate well in the city of Mobile, and the modification of it was to make the sale, accompanied by delivery, pass title to the purchaser, and to give the buyer a lien, in lieu of title, for the purchase money, for fifteen days. When a sale of the cotton is made by a commission merchant to a broker or buyer, for cash, elsewhere than in the city of Mobile, without an express agreement to the contrary, the title of the cotton will not pass by delivery, or by any other act than the payment of the purchase money. If there is delivery to the purchaser, questions may arise between the seller and persons to whom the purchasers may transfer, this case does not present for consideration. It is enough that, as to an attaching creditor of the purchaser, the title does not pass, to settle all questions now involved.
Charges given or refused must be construed, and their correctness determined, by connection with the evidence to which they are applied. A charge to the jury, that they may draw an inference opposed to all the evidence, is erroneous. Carey v. Hughes, 17 Ala. 388. Or, a charge that they may infer a fact of which there is no evidence, is erroneous. Thus, that the jury could infer from the acts of the-creditor, that sureties had knowledge of, and assented to an extension of the day of payment to the principal, no evidence of such knowledge or assent having been given, was error. Everett v. U. S, 6 Port. 166. It may be true that though the business of the claimants was that of commission merchants, yet, if in the sale to Campbell they were not pursuing that business, but were acting outside of it, and in an entirely different capacity, a delivery to Campbell would have invested him with title to the cotton. But there was no evidence of such a state of facts; on the contrary, all the *542evidence was of a sale in the regular pursuit of their business as commission merchants. The firgt charge given, if it asserts a correct legal proposition, is erroneous, in instructing the jury on a state of facts of xvhich there was no evidence. The charge given at the instance of appellee seems to us also erroneous, if it intended to assert that because claimants had the right to retain the proceeds of the sale of cotton, to meet advances made by them to Fariss & McCurdy, then the plaintiffs Avere entitled to recover. It often happens that commission merchants advance more than the value of cotton or other goods, which are consigned to, or deposited with them for sale, and have a right to retain the proceeds of sale to cover such advances. This Avorks no change in the title of the goods, nor does it change their relation to their customer. Nor Avould the title to the goods or the relation to the customer be changed, if there was an express agreement betAveen the merchant and customer, that the proceeds of sale should be retained and applied to the payment of advances. This charge was erroneous, and its direct, inevitable tendency and effect Avas to mislead the jury.
The chai’ges x’equested by appellants asserted correct legal propositioixs, and should have been given. It xvas certainly the law, as asserted by the counsel for'the appellee, and is yet generally, that the lien of a factor or commission merchant continued only so long as he has possession, and if he parts Avith possessioxx after the lien attaches, the lien is lost. The rule has no application to a sale of cotton made by a commission merehaxxt, to a broker or buyer, since the statute. The operation of the statute is to preserve the lien, as it preserves the title, certainly so far as the broker or buyer and the factor or merchant are concerned, whatever might be the effect, if the principal regained possession, without the possessioxx of the factor intervening.
It is said, however, that if the claimants had no other right or interest in the cotton than as commission merchants, holding it for sale, with a lien for advances, the title residing in Fariss & McCurdy, their px'iixcipals, the claim should have been made by the latter, and the claimants eaixnot interpose such title to defeat the levy of the attachment. We have already said the claimant must recover on the strength of his OAvn title, and that to defeat the levy he cannot set up the outstanding title of a stranger. Rut a title Avhich would authorize the claimant to support the corresponding common law remedies of trespass, trover or detixxue, will support a claim under the statute. Any bailee could support either of *543the common law remedies, against a mere wrong-doer disturbing his possession. The possession was sufficient and conclusive evidence of title, against all the world except the true owner, or one connecting himself with his title. It seems never to have been doubted that a factor or broker, having the actual possession of property belonging to his principal, could maintain trespass or trover for any tort committed by a third party, whereby such possession is affected. Bussell on Factors, 160. We think the claim was well interposed by appellants, and can be maintained against one not in a condition to set up the title of the principal.
The judgment must be reversed, and the cause remanded.