Beal v. McKee

| Ala. | Mar 2, 1907

DOWDELL, J.

According to the recital in the judgment entry, the case was tried alone on the plea of the general issue. The plaintiff’s title was based on a mortgage executed to plaintiff by one Isham Rhodes. The evidence was without conflict that Rhodes was in possession of the property sued for, claiming it as his own, at the date of the execution of the mortgage. The consideration of tlie mortgage was >sliown. There was evidence sufficient from which the jury were authorized to infer that the defendant was in possession of the property at the time suit was commenced. The trial court, therefore, committed no error in refusing to give the general affirmative, charge requested by the defendant.

There was no pretense by the defendant of title derived through the mortgagor. Indeed, the defendant did not undertake to show any title in himself, or right of possession. He was not, therefore, in a position to claim any benefit under the statute (section 1477 of the (lode of 1806), which provides that in actions of detinue by the mortgagee, or his assignee, against the mortgagor or. one holding under him, the defendant may, upon suggestion, require the jury to ascertain the amount of the mortgage debt. The ruling of the court in striking out on plaintiff’s motion the defendant’s suggestion, as shown by the record, constituted no error of which the defendant can complain.

Under the issues on which the case was tried, the court properly sustained plaintiff’s objections to the questions asked the witness McKee by the. defendant. The ascertainment of the amount due on the mortgage was not pertinent to the issue. What the sheriff said to the witness Caddell, when he (the sheriff) went to execute the writ, was not competent evidence, and the action of the court in sustaining plaintiff’s objection to this evidence was free from error.

We find no error in the record, and the judgment appealed from will be affirmed.

Affirmed.’

Txsox, O. J., and Anderson and McClellan, JJ., concur.