Conceding that the complaint states a cause of action on the case, as is insisted upon by appellant, still this holding cannot work a reversal of the case, for the reason that the testimony shows without dispute that the appellee was in possession of the property described in the complaint, nor was there any testimony to indicate that the appellant's lien had been in any wise destroyed, or its enforcement impaired. For aught that is shown, the cotton and seed remained subject to the lien and available to it, just as fully and to the same extent whilst the property was in appellee's possession as it was when it remained in the tenant Montgomery's possession.
The landlord cannot maintain an action for the destruction of his lien, unless it appears that the purchaser of the property "has disposed of the property or its proceeds, so that the lien cannot be enforced." Ehrman v. Oats, 101 Ala. 604, 14 So. 361. As was said in the case of Windham Co. v. Stephenson Alexander, 156 Ala. 344, 47 So. 280, 19 L.R.A. (N.S.) 910, 130 Am. St. Rep. 102:
"For aught appearing, defendants had said cotton and corn, separate from any other, in the same condition as when they bought it, and at the time of the trial of this case. No reason is shown for making it appear that plaintiffs' lien, if they had one, had been destroyed and could not be enforced. No facts or circumstances are proven, further than that they bought said property form Daugherty, which tend to show that defendants have done any acts with reference to the property in question, and the mere fact of their purchases, without more, was not wrongful, as destructive of plaintiffs' alleged lien."
And then this court has said in the case of Clark v. Johnson Lattimer, 7 ala. App. 507, 61 So. 34:
"Mere proof of facts sufficient to show only a conversion, if the action were one of trover by the owner, without more, will not sustain this action; for the interest of the plaintiff in the property is only a lien, which is neither a jus in re nor a jus ad rem, and, unlike the legal title, carries with it neither the possession nor the right to possession, but only the right to have the property levied on and sold under execution for the satisfaction of his judgment. No intermeddling with the property, therefore, is or can be injurious to the plaintiff's rights, which stops short of a destruction or impairment of his lien; for until then there is nothing in the way of its enforcement, which is the plaintiff's only right. The case is essentially different from that of a suit in trover by the owner. In such a case, proof only of a mere conversion of the property is, of course, sufficient; for mere conversion in such case results in injury to the plaintiff, interfering, as it does, with his rights to the possession, dominion, and control of the property, the incidents of ownership."
See, also, the case of Lowery v. Haley, 12 Ala. App. 448,68 So. 539.
The facts in the case at bar are very different from the facts in the case of Baker v. Allen, 161 Ala. 288, 49 So. 847. It is true that in the Baker Case, supra, the statement is made "that he [defendant] had the cotton," yet the two other statements, that defendant said "the cotton was about there, and to find it if he could," and "that the cotton, cotton seed, etc., taken possession of and disposed of by defendant," very clearly indicates to our mind that the court rested the opinion in the case on the fact that the defendant had disposed of or put beyond the reach of the plaintiff the cotton, upon which plaintiff claimed a lien, and for the destruction of which the suit was brought. In the instant case, the evidence is undisputed that the defendant was in possession of the cotton, and this being so, it does not appear how the plaintiff's lien, if any he has, is impaired. *Page 451
Our view on this question being fatal to a recovery on the part of the plaintiff, it is unnecessary to consider other questions raised. The judge, without a jury, tried the case, and we see no reason to disturb the judgment. It is therefore affirmed.
Affirmed