74 So. 62 | Ala. | 1917
— The appeal is from a decree of the chancery court, canceling a mortgage, purporting to have.been executed by appellee and wife upon the lands specifically described in the bill.
The testimony was taken orally, in open court, under the provisions of the act of September 22,1915 (Gen. Acts 1915, p. 705). The act provides, among other things, that in all cases in equity the judge or chancellor before whom the case is spending may, at any time before final decree, cause any or all of the witnesses to be examined orally before him in open court. The chancellor, therefore, had the opportunity in this case of seeing and hearing the witnesses, and of observing their demeanor, when giving their testimony in the cause, which is enjoyed by the judge trying a civil cause at law without the intervention of a jury (Hackett v. Cash, 196 Ala. 403, 72 South. 52; Finney v. Studebaker
Having due regard for the burden of proof, and after a careful examination of the evidence, we are of opinion that the chancellor correctly ordered and decreed that complainant was entitled to relief, that the respondents have no interest in the lands in controversy by a virtue of the mortgage in question or by reason of any assignment or foreclosure thereof, and that the mortgage be annulled and canceled. The common justice of the situation has been enforced by the chancellor (Chance v. Chapman, 195 Ala. 513, 70 South. 676), without taking into view the rule of the act of September 22, 1915.
The decree of the chancery court is affirmed.
Affirmed.