Plaintiff (appellee) sued defendant in trespass and trover, and showed that early in 1919 defendant had gathered and converted to his own use crops planted by plaintiff on a certain 40-acre tract in the spring of 1918. Plaintiff further showed that on and before December 23, 1917, his brother, W. J. King, had been in possession of the tract, and in February, 1918, had rented and delivered the tract to him for cultivation during the current year. In March, 1918, plaintiff was called to the military service of the United States and thereupon left the crop in charge of another brother, James King, who continued to cultivate the same to maturity. Plaintiff remained in the army until the spring of 1920. For defendant the evidence showed without conflict that, August 29, 1918, defendant recovered judgment in an action of ejectment against W. J. King for the tract in question, and in September of the same year was put in possession by a writ in the hands of the sheriff; that thereafter, in November, 1918, defendant conveyed the land to one Whited, retaining, however, the right "to enter upon said lands and take therefrom the rents of said crop grown on said lands during the year 1918." Whited remained in possession under his purchase down to the time of the trial.
Plaintiff held the land on which the crops were raised in privity with W. J. King, his lessor. The judgment for defendant was evidence of his title from the date of the commencement of the action. Lyons v. Stickney, 170 Ala. 134, 54 So. 496. But that date was not shown. However, from the fact that the action in ejectment was brought against W. J. King alone, and that plaintiff, through his agent in possession in September, 1919, submitted to dispossession by a writ against W. J. King alone, we think it may be safely assumed that the action was *Page 575 brought prior to the delivery of possession to plaintiff under his rental contract. On the foregoing assumption, there being no resort by the plaintiff, or his agent in possession, to the remedial provision of section 3856 of the Code of 1907, the crops on the land went with the land, and, under the authority of Carlisle v. Killebrew, 89 Ala. 329, 6 So. 756, 6 L.R.A. 617, and the cases there cited, plaintiff was not entitled to maintain the present action. The court erred in giving the general affirmative charge requested by plaintiff.
Reversed and remanded.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.