Touching the cotton sold to defendant by the mortgagor, grown on Mrs. Lovejoy’s and Mrs. Strickland’s places, the evidence is conclusive that they had alien on the bale of cotton set apart to them, to the extent of their respective claims for rent — 400 pounds to the one, and 100 pounds to the other; that the mortgagor, Mills, notified- Mrs. Lovejoy, that her rent cotton was ginned, packed and at the gin house for her, and in reply, she sent him word, that he could take it and sell it and bring her her part of the money, for 400 pounds of the cotton; that Mrs. Strickland also authorized said- Mills, her tenant, to sell her part of said bale and bring her the money, and that said. Mills, accordingly, sold said bale of cotton to defendant, and paid Mrs. Lovejoy and Mrs. Strickland the proceeds.
In this transaction, then, it is manifest, that while the bale of cotton was not actually delivered to the landlords who had liens on it, it was, in the eye of the law, constructively delivered; and- when they authorized the tenant, after the bale was set apart for them, to take it and sell it and bring them the proceeds, they and he stood related, as if he had actually delivered the cotton to them, and they had returned it to him for sale. He became their agent after that for its sale. The cotton became theirs, and if Mills had sold it and failed or refused to account to them for the proceeds, they could not have sued the purchaser for it. While it may be admitted, that if the landlords had not authorized the mortgagor tenant, to sell the particular bale of’ cotton, and bring them the proceeds, and he had, without their authority, sold it and paid the proceeds to them, the defendant would be liable to the plaintiffs, as mortgagees, for its value, — which seems to be the effect of our decision in Keith & Son v. Ham, 39 Ala. 590, — still, when these persons were notified that their rent cotton was ready, packed in a bale for-them, and they instructed the tenant to take and sell it find'bring them'the proceeds, the sale vested' a good title to the property in. the purchaser, the defendant, and the. case is taken from the: influence of that decision,
*548The facts are different in respect to the ba.le raised on Mr. Young’s place. There was no delivery of the bale to him, actual or constructive. The evidence does not show that any particular bale was set apart, to which, by his consent, his lien as landlord attached. So far as appears, Mr. Young had given his tenant no more authority to sell this particular bale, than any other part of the rent cotton. The evidence goes no further than to state, that Mr. Young authorized the tenant, Mills, generally, to pick cotton, sell it and pay him the money. The plaintiffs had a lien on this bale, and all the balance of the crop the tenant may have raised on the Young place, subject to the landlord’s lien; and it would sanction a dangerous precedent, to allow the tenant to sell, at his discretion, a part of the crop on which the rent lien attached, before its delivery to the landlord, and hold that the purchaser acquired a good title by such sale, as against the mortgagee who did not consent thereto. This would be contrary to the former rulings of this court. — Keith & Son v. Ham, supra; Bird v. Womack, 69 Ala. 392; Higgins v. Whitney, 24 Wend. 380.
On the record as presented, the court erred in giving the general charge for plaintiffs. They were entitled to recover no more than for the one bale of the Young cotton.
Reversed and remanded.