The statute (Pamph. Acts, 1888-89, pp. 57-8), under which the appellant intervenes,as claimant of seven bales of cotton, the subject of a pending action of detinue, the appellees have instituted against Lee & Grant, required the appellant to make affidavit and execute bond, as is “required by law in cases of trials of right of property, when levied on by writ of fieri facias.” The making of the affidavit and the execution of the bond, entitled the appellant to the posession of the cotton, and it became the duty of the sheriff to return to the court in which the action of detinue was pending, the summons, affidavit and bond “upon which the same proceedings must be had as in' other trials of the right of property.” Without now venturing upon a general construction of the statute, or inquiring what becomes of the action as between the original parties ; or what course of proceeding muse be observed,-or what judgment may be renderéd as between them, contrary to our first impression, we are now satisfied, it is contemplated, that there shall be a distinct, separate contestation or controversy, between the plaintiffs in the action and the intervening claimant, and the proceedings in the controversy must be assimilated to and conducted as are the proceedings in the statutory tidal of the right to personal property levied on by execution, and claimed- by a stranger to the process. The statutes authorizing and regulating that proceeding provide, that an issue must be made up between the plaintiff in execution and the claimant, “in which the former must allege that the property claimed is the property of the defendant in execution and is liable to its satisfaction ;” the allegation is of itself a negation of the right of the claimant; and it is affirmative, as well as negative, and if the statute had not so declared, necessarily, would have cast the burden of proof on the the plaintiff in execution. — Code, . § 3004-7. When there is intervention under the statute, in an action of - detinue, there must be a corresponding issue framed— the plaintiff must allege that he has the legal title to the property, the subject of the action, and the right of *395immediate possession; this is essential to support an action of detinue. The allegation is affirmative, and a negation of the truth of the claim of the claimant.
As the plaintiff has the affirmative of the issue, the burden of proof will rest on him. The claimant may-give all evidence in support of his claim which has a tendency to support it. In the statutory trial of the right of property, the claimant is not permitted to show that the right and title to the property levied on is in any other person than himself ; without connecting his title or possession with an outstanding title, however superior it may be, he is limited to the proof of his own title. — 3 Brick. Dig. 776, § 5 ; 2 Brick. Dig. 480, § 67. As upon the intervention, the proceedings are to be conducted as in a statutory trial of the right of property, the interventor or claimant, must rely on the strength of his own title, not on the weakness of that the plaintiff may assert. It is not the province of the court to frame or direct the issue which is to be formed between the plaintiff and the intervening claimant; the law declares it, and the power of the court is, if there be a controversy, to decide whether the issue tendered, or formed, corresponds to the law. We need not now decide whether the issue the court directed, is that which should have been formed, as the case must be reversed on other grounds, and hereafter, if there be error in that respect, it may be corrected.
It was the settled doctrine in this court, that a mortgage of an unplanted crop, did not pass to the mortgagee a legal title to the crop as it was planted, or as it came into existence, on which he could maintain detinue for the recovery of the crop, or other legal remedies for its conversion or tortious taking. — 3 Brick. Dig.661, §§ 399-400. The rule is modified and changed by the act of the General Assembly, of February 23, 1889, (Pamph. Acts, 1888-89, p. 45), by which mortgages of an implanted crop, if executed on or after the first day of January, pass the legal title to the mortgagee. The mortgage under which the appellees deduce title to the cotton in controversy, having been executed subsequent to the first day of January, passed to the appellees a legal title to the crops grown by the mortgagor. There was no necessity that after the crops came into existence, the mortgagor should have done any new act affirmatory of the mortgage, and for the purpose of effectuating it. *396Such acts were, prior to the statute, necessary to convert the equity the mortgage created, into a legal interest and title. The statute intervenes, and converts the mortgage into a legal title from the moment of its execution, as if it were a mortgage of a crop planted. — Hooper v. Payne, 94 Ala. 223.
The mortgage passed to the mortgagees no other or greater interest in the crops than resided in the mortgagor — it was his right and interest only he-had capacity ' to convey. The agreement between the mortgagor and the appellant,by which the mortgagor furnished the lands on which the cotton was grown, and the appellant the labor to produce it, the crop to be divided between them, 'created between them the relation of tenants in common of the crop. — Gardner v. Head, 108 Ala. 619; Adams v. State, 87 Ala. 89; 2 Brick. Dig. 129, §§ 3-6.
The relation of tenancy in common may be dissolved partially or totally, by the agreement of the cotenants. Or there may. be a partial division of the subject -of the tenancy. There is evidence tending to .show that the cotton in controversy had been set apart, •as part of the share of the common crop to which the •appellant was entitled, and had passed into his possession. If this be true, eo instanti the severance, the tenancy was, as to this cotton, dissolved, and the appellant •became its sole owner, entitled to intervene, and could maintain his intervention. The pivotal inquiry the case involves, is as to the existence and severance of the relation of tenancy in common, and evidence not aiding in the solution of this inquiry, is irrelevant. The evidence ■of the declaration, it was shown the appellant made to Bizzell, that “if Phillip ICeyser,” (the mortgagor) “had taken his advice, there would not have been a lint of cotton left, ” was irrelevant. It was without tendenejr to show that the tenancy in common had not been created, •and that the:e had not been as to the cotton in controversy, a severance, a partial dissolution of the tenancy, and was well calculated to mislead and prejudice the jury. The general instruction to the jury, it is manifest from what has been said, was erroneous. Without considering other questions presented by the assignment of errors, the judgment must be reversed and the cause remanded, because of the errors pointed out.
Reversed and remanded.