This was an action by the appellee against the appellant; one count- being in trover and the other trespass for taking two bales of cotton. The facts are that one Tillman furnished the land and team, and Pratt furnished the labor, to -make a crop, and they were to divide the crop in equal proportions. This, according to our statute, was a contract of hire, under which the. crop belonged to Tillman and Pratt had a lien on it “for the value of the portion of the crop to which he was entitled.” — Code 1896, § 2712. The plaintiffs made advances to said Pratt during the year 1898, and he executed to them an instrument intended to be a mortgage on his interest in said crop. Under section 2712 of the Code of 1896 the contract of hire existed between the parties. What was the effect, then, of the mortgage made by Pratt, Said section provides that “such lien shall have the same force and effect, and shall be enforced, in the same manner, and under the same conditions, and in the same cases as the' lien, in favor of a landlord.”
Under the landlord’s lien statute, as it originally stood, this court held that, as the landlord merely had a lien on the crop of his tenant, which was not the subject of assignment or transfer to another,- he did not have -any title or interest in the -crop which could be the *377subject of a valid mortgage (Broughton v. Powell, 52 Ala. 123); also that the statutory right of enforcement by attachment could not be available to an assignee of the landlord (Foster v. Westmoreland, 52 Ala. 223). Subsequently the statute was amended so as to permit the assignment of the landlord’s lien, clothing the assignee with all of the landlord’s rights. — Code 1896, § 2706. Under this statute it results that when a landlord attempts to make a mortgage on the crop of his tenant, while it cannot operate as transfer of the legal title, which he has not, it does operate as an assignment of his lien, and clothes the assignee with the same rights and remedies as the landlord had. — Leslie v. Hinson, 83 Ala. 267, 3 South. 443; Ballard v. May field, 107 Ala. 396, 18 South. 29. The statute does not transform the equitable lien of the landlord into a legal title, and the fact that he can maintain a claim suit on it is only by virtue of the statute, which has been amended so as to allow the holder of an equitable title “or lien” to maintain that particular form of action. — Code 1896, § 4141. Accordingly this court has held that the statutory lien of the hireling will not support the action of trover.— Jordan v. Lindsay, 132 Ala. 567, 31 South. 484. The mortgage could not amount to anything more than an assignment of the lien held by Pratt. Consequently the plaintiff could not maintain the action of trover or trespass on any title acquired by the mortgage, although, as will be shown hereafter, a different question would arise if the crop had been divided and the cotton delivered to him in payment of his lien.
The testimony that Tillman said he would see the debt paid was admissible, as a circumstance tending to corroborate the testimony of the plaintiff that Tillman did afterwards turn the cotton over to them for the payment of the debt. One of the plaintiffs further testified that after the cotton was ginned, and while it was at the gin, said Pratt told them to go and get the cotton and apply it to their mortgage.' This testimony was objected to by the defendant, and, without more, would be incompetent, as Pratt did not have the title to the cotton and could not authorize the defendant to take it unless he had acquired it from Tillman- But the plaintiff *378proceeded to testify (and he is corroborated by other witnesses) that about the same time Tillman told him that “there were four bales at the gin,’ two of which were marked ‘J. T.’ and two marked N. P.,’ and told Jordan to go and get the two bales marked N. P.’ and pay themselves out of them what Pratt was owing them.” This testimony was contradicted; but, if true, it might authorize the jury to believe that the cotton had been divided, and the two bales marked “N. P.” assigned to Pratt, and if both Pratt and Tillman united in authorizing Jordan, for his firm, to take possession of the cotton and pay their debt out of it, that was a deliverey to the plaintiffs, either as bailees or as vendees, for the purpose of selling the cotton and out of the proceeds to pay their own debt and account for the. overplus to Pratt. Jordan went and got the two bales marked “N. P.” and placed them in the rear of his store in Guntersville. Subsequently Tillman took the bales, over the protest, of plaintiffs, and placed them in the warehouse of defendant. Plaintiffs notified defendant that they had a mortgage on the cotton, and said cotton was in defendant’s hands at the time of the commencement of this suit. Tillman claims that he has a lien on Pratt’s part of the cotton for advances to the amount of |56, also denies that the cotton had ever been divided and so marked with his consent, and denies that he authorized plaintiffs to get the cotton.
There are' conflicts in the testimony for the determination of the controversy by the jury. It matters not Avhether the transaction by Avhich the cotton Avas delivered to the plaintiffs created a bailment, or amounted to a sale, although the former seems to be the case.— Sattler v. Hallock, 160 N. Y. 291, 54 N. E. 667, 46 L. R. A. 679, 73 Am. St. Rep. 686. In either case the plaintiffs would be authorized to maintain an action for the taking or conversion of the property. Unquestionably Tillman and Pratt together had a right to dispose of that property in any manner’ that they might choose, and if it was divided and the two bales turned over to Pratt, and by the concurring act of both delivered to the plaintiffs, to be by them sold and appropriated to the payment of their debt, it had passed beyond the control *379of both Tillman and Pratt. Tillman might have refused to pay it over until the amount due him for advances was paid; but, having paid it over, the law gave him no. lien for advances. Pratt simply had the right to demand that the cotton be fairly sold, and, if there was any overplus, to have it paid to him. If, on the other hand, there was no division of the cotton, no payment to Pratt of'his part, and no delivery by Tillman and Pratt to the. plaintiffs for the payment of their claim, then the cotton remained the property of Tillman, and the plaintiffs could not recover. It is true that if the plaintiffs were the bailees, and used the property in any way contrary to the terms of the bailment, the bailor would have a right to recover his property; but, if the property was divided, Pratt was the bailor, and not Tillman. However that may be, if it was delivered to them, to be sold and applied to the debt of Pratt, they had a right to keep it on their premises for a reasonable time until the sale could be effected, and they committed no wrong in declaring that Tillman had no interest in it.
From what has been said it will appear: (1) That the court did not err in allowing the witness to testify that Tillman said he would see Pratt’s debt paid. (2) There was no error in allowing proof that Tillman told Jordan to go and get the cotton, as that was proper, as tending to show that Tillman had relinquished his right and turned the cotton over to Pratt. (3) Nor was there error in permitting Jordan to testify that, after the cotton had been taken from plaintiffs and placed in defendant’s warehouse, Tillman said to him, “Your two bales of cotton are in the warehouse,” as that was a circumstance going to show that Tillman considered that the property had been turned over to Jordan, as he claims. (4) There was no error in the giving of charge A, on request of the plaintiffs. The fact that .the case was previously tried’ on a different theory could not deprive the plaintiffs of the right to prove anything material to their controversy in this case. No principle of estoppel is shown, as 'the evidence shows the cotton was in the possession' of the 'defendant at the time of the institution of this suit, and has since been sold by his employe. *380(5) Prom what has been said, it will be seen that there was no error in the giving of charge B at- the request of the plaintiffs. (6) Chargé C is not subject to' the criticism insisted upon by the appellant. (7) Charge D was properly given. (8) As there was a conflict in the evidence, there was no error in the refusal to give the general charge in favor of defendant.
The only other charge referred to in the brief of appellant is charge 6, requested by the defendant and refused. There was no error in the refusal to give this charge. Although the cotton did belong to Tillman at the time it was ginned, yet it does not follow that the only way in which plaintiffs could have acquired the cotton, or such an interest in it as to entitle them to recover, was by a purchase from Tillman. Tillman may have divided the cotton and paid these two bales over to Pratt, and Pratt may have turned it over to the plaintiffs, with Tillman expressing his consent, by way of giving assurance that he had relinquished all right to it ;and, if these be .the facts, the plaintiffs could recover.
The motion for a new tral was properly overruled. There is no error in the record, and the judgment of the circuit court will be affirmed.
Affirmed.
Tyson, C. J., and Haralson and Denson, JJ,, concur.