77 So. 999 | Ala. | 1917
This case having been submitted and considered under new rule 46 (178 Ala. xix, 65 South. vii) the opinion of the court was delivered by Mr. Justice McCLELLAN:
The bill in this cause was filed by the appellant, a mortgagee, against the mortgagors, and seeks an accounting and a foreclosure of the mortgage. The only issue in the cause is the amount appellees had paid the mortgagee in partial satisfaction of the mortgage debt. Upon reference to the register it was found by him that on the filing of this bill the mortgage debt was $190.58. The questions arising on the issue stated involve controversies of fact only. The whole evidence has been carefully considered. From this consideration, aided by the arguments submitted through the briefs of the respective solicitors, this court is convinced that the decree appealed from was well rendered; and so even if it be assumed that — notwithstanding the affirmative averment of appellant's bill that the payments therein listed were all the payments made on the mortgage debt — the burden of proof to establish other payments on the mortgage debt rested upon the mortgagors. Under the evidence, including an inspection of the original deposit slip certified to this court, it cannot be affirmed that the deposit thereon noted was made on any other date than that evidenced by the deposit slip. The decree is affirmed. Affirmed.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.
