— The present action is one of trover, brought by the appellee, Garner, against the appellant, Bush, for certain cotton alleged to have been converted to the latter’s use. The title asserted to the cotton by the plaintiff was based on a written instrument, purporting to be a mortgage, executed by one Welch to plaintiff on January 8, 1878. There can be no question as to the operation of this instrument so far as affects the land, and other personal property, other than the crop of cotton, which it conveys. As to these, apt words of conveyance are used, sufficient to operate a conditional transfer of the legal title to the mortgagee, which is always the decisive test of a legal mortgage. — Jones on Chat. Mortg. §§ 8-9 ; 1 Jones on Mortg. § 11-
But no such words of grant or conveyance are used in reference to the crop of cotton to be raised during the current year. It is merely declared that “this mortgage is made a lien on the crop of cotton made on the place” to the extent of the annual payment due for each succeeding year. This is not a mortgage, but a mere lien created by contract, or a right to charge the cotton with the payment of the debt. It is, in other words, a mere equitable lien in the nature of a mortgage, conferring no legal estate or interest in the cotton alleged to have been converted, such as is necessary to support an action of trover. — Jackson, Morris & Co. v. Rutherford, at present term [ante, p. 155]; Evington v. Smith, 66 Ala. 398; Newlin v. McAfee, 64 Ala. 357; Jones on Chat. Mortg. § 9; Donald v. Hewitt, 33 Ala. 534.
Under this view of the case, it is plain that the plaintiff, independently of the fact that the crop was not, in existence at the time of the creation of the lien, had no such title to the cotton sued for as would authorize a recovery.
, It is insisted, however, that the instrument conveyed the legal title to the cotton, under the influence of section 1359 of the Code of Mississippi (1880), which is introduced in evidence, and shown to have been in,force at the time of the contract, and is in the following language : “§1359. It shall be lawful for persons to make and execute mortgages or deeds of trust upon growing crops, or crops to be grown within fifteen months from the making of such mortgage, or deed of trust, which encumbrance shall be valid and bindvng wpon the interest of such mortgagor, or grantor, in such crop, but shall not be, in any case, prior to the liens provided for in ‘ an act in relation to landlord and tenant, and an act in relation to the lien of employers and employees.’ ”
The proper construction of this statute, we think, is, that it is merely declaratory of what the common law was before its passage, with the limitation engrafted, that the crop must be *167produced within the specified period of fifteen months. Before the existence of the statute, a mortgage on an unplanted crop, which was to be produced in the future, was held to be valid in Mississippi, operating to create only an equitable lien, and not to convey the legal title. — Sillers v. Lester, 48 Miss. 513; White v. Thomas, 52 Miss. 49; Ellett v. Butt, 1 Woods, 214; s. c. 19 Wall. 544; Jones on Chat. Mortg. § 174. This is in harmony with the numerous decisions of this court, and the great preponderance of authority on this subject. — Grant v. Steiner, 65 Ala. 499; Rees v. Coats, Ib. 256; Elmore v. Simon, 67 Ala. 526.
If the Mississippi statute could be construed otherwise, so as to authorize the legal title to pass by a mortgage on an unT planted crop, it is obvious that an instrument creating a mere lien or charge would not come within its influence. The effect of the statute would be only to make a legal mortgage, with apt words of conveyance, operate to convey the legal title.
The charge of the circuit court was in conflict with these views, and its -judgment must, therefore, be reversed.
As the cause may be tried again under an amended complaint, however, we proceed to consider the other assignments of error.
The husband was a ptoper party plaintiff, and should have been joined with the wife in the present action. The interest in the cotton sued for was the separate property of Mrs. Garner in the State of Mississippi, and the mere transportation of .it into Alabama did not alone change its status, so as to constitute it her statutory separate estate under the laws of this State. Cahalan v. Monroe, Smaltz & Co., 70 Ala. 271. Section 2892 of the Code was construed by us, in the case of King v Marin, 67 Ala. 177, to require the husband to be joined as co-plaintiff in cases of this character.
As the complaint is susceptible of amendment upon a new trial in the lower court, we need not decide whether the objection for non-joinder can be raised otherwise than by a plea in abatement, as was the rule of the common law, where a married woman sued alone, but might have been joined with her husband. See James v. Stewart, 9 Ala. 855; Price v. Talley, 18 Ala. 21; 1 Chit, on Pl. 23; McCall v. Jones, 72 Ala. 368; Barbour on Parties, 309; Gould’s Plead, ch. v, § 103; Dicey on Parties, 530 [507]; Courts v. Happle, 49 Ala. 254.
It is argued by the appellant that the present action will not lie, for the reason that he held a conveyance of the cotton in question which created a prior lien on it in his behalf. This instrument, bearing date March 6, 1878, is in the form of an ordinary mortgage, and declares that it is “ intended as a supply-lien ” in favor of the mortgagees “ for advances and supplies ” *168to enable the mortgagor “ to cultivate and gather a crop ” to be raised on his farm during the current year. It is insisted that, although this mortgage is subsequent in point of time to that of the plaintiff, it is prior in right, as “ an agricultural lien” under the provisions of a special statute existing in Mississippi, where the contract was entered into between the parties. The appellant fails to introduce a copy of this statute in evidence, and we can not take judicial notice of its contents. It is true that lie has made proof of certain adjudged'cases decided by' the Supreme Court of Mississippi, and found iii the reports of that State, construing a certain statute said to have been approved February 18, 1867, in which it is held that, under its provisions, a lien may be created on a crop, known as an agricultural lien, which, though junior in date, may be "prior in right to that created by an antecedent mortgage. — Herman v. Perkins, 52 Miss. 813.
The statute in question should have been proved in the usual mode of authenticating foreign statutes. . This could have been done, under the provisions of our Code,- by producing a transcript or copy of the statute properly certified by the Secretary of this State, as being deposited in his office, or the printed volume, purporting on its face to be printed by authority of the sister State. — Code, 1876, § 3045 ; Bradley v. Northern Bank, 60 Ala; 252; Clanton v. Barnes, 50 Ala. 260.
So, 'this mode of proof authorized by the Code being merely cumulative, the Mississippi statute could have been proved by a sworn, of an exemplified copy, and, according to some authorities, in_ certain cases, by expert witnesses. But the latter proposition we do not decide. — State v. Twitty, 11 Amer. Dec. 785, note; 1 Whart. on Ev. § 309; 1 Greenl. on Ev. § 486. -. Although, we may add, it is clear that the exposition or interpretation of the statute of a foreign State can be proved by an attorney who, as an expert, may be shown to be learned in such law.— Walker v. Forbes, 31 Ala. 9.
The reports of adjudged cases, accredited to the Supreme Court of Mississippi, were properly introduced as evidence of the construction placed upon the statute of that State, and such construction must be received by this court as authoritative. — 1 Whart. on Ev. § 311. But as such reports are usually evidence only of the unwritten law of the State in which the decisions were rendered, and there is a prescribed rule for proving foreign statutes, we are clear in the opinion that the reported decisions can not, taken alone, be received as legal evidence of the contents or provisions of such- statutes. — Cubbedge v. Napier, 62 Ala. 518; Inge v. Murphy, 10 Ala. 885; State v. Twitty, 11 Amer. Dec. 785, note.
If a foreign statute is properly proved, it may be presumed *169ordinarily to remain in force without additional negative proof showing that it has hot been repealed or modified. — 1 "Wliart. on Ev. § 308. Hence, if the defendant make proof of the enactment of the statute under which he claims a prior lien on the cotton sued for, and show that it existed as a law in the State of Mississippi in the year 1861, the burden of showing its repeal or modification would be shifted on the plaintiff.
In the absence of this statute as ’ evidence, properly proved as above indicated, we can not undertake to construe it with the view of deciding the question raised as to the relative priority of the Hens claimed by the plaintiff and defendant to the cotton in' controversy.
Heversed and remanded.