The opinion
STONE, J.
— The case of Brown y. Goats, 56 Ala. 439 , was founded on the same contract which is brought to view in this suit. In that case is a dictum, which, no doubt, caused this suit in the form in which it is brought. We regret this, as, on the facts shown in this record, the contract between Brown and Coats did not, of itself, vest a legal title in the latter, which is always necessary to maintain detinue or trover.— Tucker v. Leslie, at last term, and authorities cited. To maintain either of these common-law remedies, there must be a present right to immediate possession. Without some new act, such as taking possession, or receiving possession after the crop is grown, the claim of Coats was a mere equity, which will not support trover. Such is the effect of a lien, or even a mortgage, given on a crop before it is planted. 1 Jones on Mort., sections 150, 151; Butt v. Ellett, 19 Wall. 544 ; McCaffrey v. Woodin, 65 N. Y. 459 ; S. C., 22 Amer. Rep. 644; Appreson v. Moore, 30 Ark, 56; Hutchinson v. Ford, 9 Bush, 318 ; Booker v. Jones, 55 Ala. 266 ; Adams v. Tanner, 5 Ala. 740 ; Morrow v. Turney, 35 Ala. 131 ; Kirksey v. Means, 42 Ala. 426 ; Lehman, Durr & Co. v. Marshall, 47 Ala. 362 ; Abraham v. Carter, 53 Ala. 8 .
If Coats had a lien on the cotton, such as he claim.,, and if Rees, having notice thereof, converted or disposed of the cotton, then an action on the case may be maintained. Hussey v. Peebles, 53 Ala. 432 ; Lomax v. Le Grand, 60 Ala. 537 . The complaint may be amended, by adding a count in case to the count in trover. — 1 Brick. Dig. 41, § 27.
Reversed and remanded.