The complaint contains a count in trespass for the wrongful taking of one yoke of oxen, and a second count, in trover for the conversion of said property. There seems to be no controversy about the fact, that the oxen belonged to Charley French, subject to certain mortgages which he had executed. The plaintiff held and owned one of these mortgages executed by French to him, the law day of which expired February 1st, 1893. On the 15th of May, 1893, the plaintiff found the oxen on the farm of the defendant, and demanded them of him. The defendant replied “that he had Sam Henry between him and danger, and that he would prosecute anybody that interfered with the cattle, and that nobody could get them who did not have a better right.” At this time the defendant was the owner of a junior mortgage on the cattle', which had been executed to one Sam Hehry by Charley French.
The first question is, conceding that plaintiff’s title was s uperior to that of defendant, whether what was done and said by the defendant, under the circumstances, the oxen being on the farm of the defendant, amounted to a tortious conversion of the property. Under the principles declared in the case of Bolling v. Kirby, 90 Ala. 215, and authorities there cited, we have no hesita*463tion in declaring that the conduct of defendant amounted to a conversion. — s. c. 24 Am. St. Rep. 789, and notes.
On the trial the defendant was allowed to prove that one Smith held a mortgage on the oxen executed by French prior to that of plaintiff, and without in any manner connecting himself with such superior title or claim. This was error. A defendant when sued in detinue or trover, may show an outstanding superior title with which he connects his claim or possession ; but no such evidence was offered in this connection. The rule has been often declared and the reasons stated. — Authorities collected in Draper v. Walker, 98 Ala. 310, and Thorn v. Kemp, Ib. 417. We presume that the evidence was admitted under the principle, that when a plaintiff fails to show former possession, and relies solely upon title, the defendant is permitted to set up an outstanding superior title in a third person, without connecting himself with it, to defeat the action ; but this exception to the rule does not apply where both titles are derived from a common source. The precise question arose in the case of Gardner v. Boothe, 31 Ala. 186, and the evidence was held to be inadmissible.
Upon the same principles the court erred in allowing evidence of the detinue suit by Smith against French instituted on the day following the demand by plaintiff for the oxen. Under the evidence, the action by Smith against French was res inter alios acta as to plaintiff and defendant, and not admissible. If all the alleged evidence had been excluded, the plaintiff would have been entitled to the affirmative charge.
Reversed and remanded.