[Birmingham Building & Loan Association v. Boggs.] the material, purchased from the Hawkins Lumber Co. certain material and began the construction of the building. During the progress of the work, Garrison ascertained that he had mistaken the location of his lots 6 and 7, and that the improvements were being made upon lots 8 and 9, to which lots he had no title and in which he owned no interest. He was a mere trespasser upon these lots. He immediately suspended work, and it appears that Westbrook never afterwards performed any other services, or procured any additional material. One Thweatt, a resident citizen of Talladega, a distant county, owned lots 8 and 9, and Garrison began arrangements for the purchase of these lots from the owner. Not having the money to pay for them, he applied to the Birmingham Building and Loan Association for a loan, which association agreed to advance him a sufficient amount. The agreement upon which the money was advanced or loaned, seems to have been as follows: Thweatt executed a deed to Garrison which was not to be delivered until the purchase money was paid, and for this purpose the deed was sent by express to Birmingham. Garrison executed a mortgage upon the lots 8 and 9 to the Building and Loan Association, and upon the execution of the mortgage by Garrison, the loan company paid over the money to Thweatt and received the deed from the express company, and delivered it to Garrison. After completing the purchase of the lots 8 and 9 upon the terms stated, Garrison proceeded with the construction of the improvements, and for this purpose procured additional materials from the Hawkins Lumber Company. The materials not having been paid for, the Hawkins Lumber Company instituted legal proceedings to enforce a material-man's lien, which resulted in a judgment and sale of the premises, at which sale Boggs, the appellee, became the purchaser. The Building & Loan Association was not a party to the legal proceedings for the enforcement of the lien for materials, and on the day of sale at which Boggs became purchaser, gave notice of its claim. The mortgage not being paid, it was foreclosed and the appellant, by virtue of a power contained in the mortgage, purchased the property and entered into possession. Boggs instituted ejectment, and under the instructions of the court, the jury returned a verdict for the plaintiff. debt [Locke v. Reeves, et al.] In considering the question, we regard the transaction between Garrison and Thweatt and the loan company for the purchase of lots 8 and 9 as contemporaneous and constituting but one transaction. Appellee insists that under the rule declared in some of our decisions, the material lien attached as soon as the lumber was placed upon the lots. However correct a principle this may be when applied to the facts of the cases in which it was asserted, it was not intended to declare that the lien attached to lots not owned by the contracting party, and that a lien could be created by a mere trespass upon another's property. It is evident that at no time, in law, did Garrison own lots 8 and 9 before it was subject to the mortgage. Whatever rights Garrison may have acquired by the purchase, related back in favor of the material lien, but no others, and, as we have seen, these rights were subject to appellant's mortgage. The court erred in assuming and declaring as matter of law, the material lien attached to lots 8 and 9 from the date the lumber was placed upon these lots. Whether the appellee Boggs is entitled to any equitable relief under the rule declared in the case of Wimberly v. Mayberry, 94 Ala. 240, cannot be considered, as in the present action we can only deal with the legal title. We are of opinion the decision of the question considered is sufficient to guide the trial court on the next hearing. Reversed and remanded. Locke v. Reeves, et al. Action of Trover. 1. Sale to wife without husband's consent; maintenance of action of trover.-Where a grocery merchant sells to a married woman, without the written assent of her husband for her to make the purchase, family supplies, such as groceries, &c., and they are delivered with knowledge on the part of the seller that they were purchased for consumption, and without objection he suffers the goods so sold to remain with the purchaser until they have been consumed, upon the wife and her husband failing to comply with his demand for a surrender of the [Locke v. Reeves, et al.] goods (which had been rendered impossible by reason of their consumption), the seller can not maintain an action of trover against the wife and her husband for the conversion of the goods. APPEAL from the Circuit Court of Barbour. This action was brought by the appellant against the appellees. The facts of the case are sufficiently stated in the opinion. Upon the sustaining of the demurrers to the plaintiff's replications to defendant's several pleas, the plaintiff declined to plead further, and judgment was rendered for the defendant. The plaintiff appeals, and assigns as error the judgment of the court in sustaining the demurrer to each of the several replications. S. H. DENT, JR., for appellant. A. H. MERRILL, contra.-To maintain trover there must be some tortious act on the part of defendants. Bolling v. Kirby, 90 Ala. 215; Voltz v. Blackmar, 64 N. Y. 646. "If property was destroyed, and with the consent of plaintiff, prior to the demand, then this action can not be maintained; for the plaintiff must show that the defendant was then" (at the time of the demand) "able to deliver, or he has shown no conversion."-Whitney v. Slauson, 30 Barb. (N. Y.) 276; 24 Amer. State Reports, p. 805, note; Hills v. Snell, 104 Mass. 173; Burbank v. Crooker, 66 Amer. Dec. 471; Hermann on Estoppel, p. 479, § 495; Tousley v. Board of Education, 39 Minn. 419. HEAD, J.-The plaintiff, Locke, a grocery merchant in Eufaula, sold to Lizzie G. Reeves, a married woman, and delivered to her husband and co-defendant, J. H. Reeves, as her agent, sundry articles of merchandise in his line. The goods, which are itemized in the complaint, consisted, in the main, of family supplies such as groceries for food and other daily domestic use and consumption. There were in the list several items of bagging and ties and tobacco. They were all sold with knowledge that they were purchased for consumption, and for that purpose alone. There was no written assent on the part of Mr. Reeves to his wife making the purchases. The goods were consumed according to the [Locke v. Reeves, et al.] purposes for which they were sold, and thereafter the plaintiff demanded possession of them of the defendants, Mrs. Reeves and her husband, which demand, of course, could not be complied with. He then sued the defendants in trover, for conversion of the goods; the proposition, upon which the action is sought to be maintained, being that the sales were void, under the married woman's law, for the want of the written assent of the husband, wherefore, the title never passed from the plaintiff, and the possession and conversion of the goods were a tort on the part of Mrs. Reeves and her husband.. The question is raised by demurrers to replications to pleas, and these demurrers, guided by the decision of this court in Strauss v. Schwab, 104 Ala. 669, seem to assume that such a sale is void, and that the seller may so treat it and reclaim the goods while in existence, and if not surrendered, on demand, and are afterwards converted, maintain trover; but they rely, for defense to the action, upon the proposition that these defendants could not be tort-feasors when the plaintiff placed the goods in their possession, for the sole purpose of consumption in the very manner in which they were consumed, and suffered them there to remain without objection or demand until after they had been so consumed, whereby their return became impossible. As this last proposition is, to our minds, so obviously true, we will say nothing as to the other question (which, we said, the demurrers seem not to raise) except to remark that our decisions touching it appear to be inharmonious, and must stand over for future reconciliation or more definite settlement by the court, whenever it shall become necessary.-Marks v. Cowles, 53 Ala. 499; McAnally v. Heflin, 105 Ala. 525; American Freehold Land Mortgage Co. v. Dykes, 111 Ala. 178 (191); Strauss v. Schwab, 104 Ala. 669. But, as we have intimated, the defense made by the demurrers is impregnable. The effect of the plaintiff's contention is, that although he voluntarily delivered these goods to these parties for the express purpose of retention and consumption, thereby manifesting, in the strongest possible manner, his consent to the conversion, yet, when each article was delivered across the counter the possession of it by the defendants became immediately unlawful and tortious; it became their duty trover. [Stein, et al. v. McGrath.] to immediately restore it to the plaintiff, without demand, and failing to do so, and converting it, in the manner contemplated by the delivery, the conversion was unlawful, subjecting the defendants to the action of This consent of the plaintiff, not withdrawn before conversion, deprived the conversion of every element of a tortious character. The case of Strauss v. Schwab, supra, settled this question, and upon that point (pretermitting consideration of the first point of the opinion) we have no doubt whatever of the correctness of the decision. In Dodson v. Harris, 10 Ala. 566, where a horse was sold and delivered on Sunday-a sale which the statute, enacting a rule of public policy, declared to be absolutely void-this court held that the possession of the vendee was not an unlawful detention, and an action would not lie for recovery of the horse until a demand and refusal. See, also, Cooley on Torts, 452-3; Ib. 163; Goldnamer v. O'Brien, 56 Am. St. Rep. 378. See, particularly, note on p. 805, 24 Am. St. Rep. ; 66 Am. Dec., note on p. 473. The circuit court correctly sustained the demurrers to the replications, and its judgment is affirmed. Affirmed. Stein, et al. v. McGrath. Bill in Equity for Partition. 1. Equity pleading; right of amendment.-Where in a bill filed asking for the dissolution of a co-partnership and the settlement of the partnership business between the persons associated under a firm name, and for a sale and distribution of the property belonging to such partnership, the allegations as to the real relations of the parties are ambiguous, a bill filed as an amendment to the original bill, which seeks by its allegations to cure the insufficient averments as to the relation of the parties, and avers that they were owners in common of the property and prays for a sale of such property and a division of the proceeds between the parties, does not substitute a new cause of action, nor is the relief varied essentially from what could have been obtained on the original bill; and, therefore, such amendment is properly allowed. 2. Same; bill for partition; insufficient averments as to property |