¶1Crops of annual culture, left growing and ungathered at the time of the owner’s death, were at common law regarded as personalty as between the personal representative and the heirs.— Blair v. Murphree, Adm’r, 81 Ala. 454, 2 South. 18; Mitcham v. Moore, 73 Ala. 542, 547; Marx v. Nelms, 95 Ala. 305, 10 South. 551. Their status as personalty has not been changed by our statutes, and the widow and minor children may claim them as part of their exemptions of personal property.
¶2When the decedent leaves less than $1,000 of personalty, including growing crops as here, the title and possession pass to the widow and minor children without administration or allotment. In all cases the actual possession of such exemptions goes to the widow, who holds not alone for herself but also as trustee for the minor children. — Lanford v. Lee, 119 Ala. 248, 254, 255, 24 South. 578, 580 (72 Am. St. Rep. 914). “The social relation of family not existing, the minor child or children have the rights which they would have if the social *103relation existed and they were leaving the family.’ The exemption, nor any part of it, having been applied to their maintenance, nor occasion for its application existing, they would be entitled to share in the exemption equally with the widow.”
¶3It here appears that the widow left the family homestead, where the children remained, very soon after her husband’s death, thereby severing the family relation. She left the property here in question with the children without making claim thereto, and the latter completed and gathered the crops, and were in possession of the mule and crops when they were seized under the detinue writ at the suit of Snead. Under these conditions it must be presumed that there was a severance of the interests of the widow and of the children with respect to the exempt property to which they were jointly entitled, from which it follows that the children were entitled to maintain this action by guardian or next friend, for the enforcement of their property rights, and the widow was neither a necessary nor proper party plaintff. The rulings of the trial court in this respect were free from error.
¶4But the fact that plaintiffs completed and gathered the crops by their own labor did not impair prior liens or charges imposed thereon by the decedent in his lifetime. — Naftel v. Osborn, 96 Ala. 623, 625, 12 South. 182. Their estate was subject to the several mortgages held by defendant as assignee, or as original mortgagee, if they were valid instruments, to the extent of any balances due on the debts thereby secured, and subject also to seizure and sale for their satisfaction under the powers therein granted.
¶5The evidence was without dispute that the two mortgages assigned to defendant by Brewster & Bonner were valid instruments, and that $65 was due on one, and *104$10 on the other, when Snead instituted the detinue suit, and also when he foreclosed the .mortgages by sale under power. Hence, although Snead’s recovery of a judgment in detinue against Mrs. A. A. Scott, Tom Scott, and others, cannot bind these plaintiffs because they were not parties, and are not in privity with parties thereto, Snead’s seizure of the property, whether with or without legal process, and his sale of the property under the powers named, were lawful acts, and he was guilty of neither trespass nor conversion. The trial court erred in refusing to give for defendant the general affirmative charge as requested by him in writing-on the counts in trespass and trover.
¶6The evidence affords no hint whatever as to the amount realized by Snead at the foreclosure sale, and there is no presumption, either of law or of fact, that the proceeds of the sale equaled or exceeded the mortgage debt. So there was no evidence upon which plaintiffs could have recovered under the common count for money had and received to their use, and defendant was therefore entitled to the general affirmative charge on that count, and on the whole case, and its refusal was error. If Snead received proceeds in excess of what was lawfully due to him on the mortgages, including lawful charges, he was of course liable to plaintiffs for that excess, but the burden was on plaintiffs to show a definite excess as a basis for their recovery, even assuming that the last mortgage (to Snead) was subject to avoidance by reason of the mortgagor’s intoxication.
¶7It is true that the mule was shown to be worth $150, and true that the other property was probably worth about $200 additional. This being so, a sale of it for less than $100 might have been accompanied by' such misconduct on the part of the mortgagee or his agent as to support an action on the case for breach of the *105duty owed to the mortgagor or his successors in interest in that regard. — 7 Cyc. 109, d. But there was neither pleading nor proof to support such a recovery.
¶8The drunkenness of a party at the time of making a contract may render the contract voidable, but it does not render it void. — B. R. L. & P. Co. v. Hinton, 158 Ala. 470, 48 South. 546; Oakley v. Shelly, 129 Ala. 467, 29 South. 385; Wright v. Waller, 127 Ala. 557, 29 South. 57, 54 L. R. A. 440. To render it voidable it must be made to appear that the party was intoxicated to such a degree that he was “incapable of exercising judgment, understanding the proposed engagement, and of knowing what he was about when he entered into the contract sought to be avoided.” — Wright v. Waller, supra.Of course where drunkenness is superinduced by the other party, with fraudulent intent, a less degree of incapacity may suffice to avoid the contract.
¶9On the issue of the incapacity of plaintiffs’ father, by reason of drunkenness at the time, to make the mortgage to Snead, proof merely that he “was drunk” on the morning the mortgage was executed had no tendency, per se, to show that he was without contractual capacity. There must be some evidence of a resultant condition indicative of that extreme impairment of the faculties which amounts to contractual incapacity.
¶10Nor was the mortgagor’s drunkenness on the afternoon of that day, nor the fact that he had been drinking heavily for six months prior thereto, competent evidence on this issue in the absence of some evidence of incapacity by reason of drunkenness at the time he made the contract, even if such evidence of remote drunkenness were in any case admissible.
¶11If the mortgagor executed the mortgage in question, whether drunk or sober, it is to be presumed, prima facie, that he received the consideration, viz., the value *106of $286. If he, or his successors in interest, elected to disaffirm the contract on the ground of his contractual incapacity, by reason of his alleged drunkenness, a condition to such disaffirmance was the return to mortgagee of the consideration received fruni him. — B. R. L. & P. Co. v. Hinton, 158 Ala. 470, 475, 48 South. 546. Nor could they, without a previous disaffirmance of the contract, accompanied by a tender of the consideration received and retained, maintain any action against the mortgagee founded upon the alleged invalidity of the mortgage contract.
¶12The trial court proceeded in evident disregard of the foregoing principles, and for the errors pointed out the judgment will be reversed,, and the cause remanded for another trial.
¶13Reversed and remanded.