Collier v. White

97 Ala. 615 | Ala. | 1892

COLEMAN, J.

— The plaintiff White sued Jesse W. Oollier in detinue to recover a mule. On January 28th, 1889, one U. O. Collier, son of defendant, and then the owner of the mule, executed a mortgage to plaintiff to secure a note for $75, “and any other amount we may owe him in 1889.” During the year, but after the law day of the mortgage, a controvesy having arisen between the mortgagee and mortgagor, by' parol agreement arbitration was resorted to for the settlement of disputed facts. The testimony is in conflict as to- exactly the extent of the matters and questions referred to the arbitrators for their decision. On the 23rd of November, 1889, the arbitrators made their award in writing as follows: “We, the arbitrators chosen, and sworn, to settle the controversy between IT. O. Collier and T. M. White, after weighing all the evidence submitted in the case, we find in favor of T. M. White, $48.00.” After providing fox the payment of the costs, the award was made returnable to W. H. Walker, J. P. It is contended that the arbitration and award divested the legal title to the mule out of the mortgagee. The contention is without merit. There is nothing in the award itself which indicates such an intention, and much less is there a decision in terms to that effect. The judgment of a court fixing definitely the amount of a claim secured by a mortgage does not impair the security of the debt, and an award which merely fixes the amount due, can not be held to destroy the mortgage security for the debt.

It is contended that claims not embraced within the mortgage were submitted by plaintiff to arbitration, and the general award in favor of plaintiff for $48 vitiated the mortgage. The record does not sustain the contention, even conceding for the purpose of the argument as sound the proposition upon which the contention is based. The court also was careful to instruct the jury, that if claims were submitted to the arbitrators by the plaintiff not involved in and covered by the mortgage, they should find the issue for the defendant. The provision of the mortgage “to secure this note and any other amount we may owe him in 1889,” is broad enough to cover every character of indebtedness of which there is evidence in the record, whether for goods sold defendant or for damages accruing to plaintiff for tbe failure of the defendant to cultivate plaintiff’s land according to contract. If these matters arose during the year 1889, and constituted valid claims, they were included in and secured by the mortgage.

There was no error in sustaining plaintiff’s demurrer to special pleas three and four. We are not called upon to consider the correctness of the ruling of the court upon plaintiff’s demurrers to pleas three and four after they were respectively amended. The plaintiff is not complaining in this court, and whatever of merit there was in these pleas after being amended, was fully met by plaintiff’s replication.

There is nothing in the question of estoppel. Declarations made by arbitrators as to what was before them, or as to the legal effect of an award, called for no reply from either of the parties, and their silence can not be construed into an assent of the truth of the statement. The award itself is the evidence of their finding and conclusion. The demurrer to the replication to the third and fourth pleas was properly overruled, and the plaintiff’s demurrer to the rejoinder to the replication to fourth jilea was properly sustained.

It is assigned as error, that the judgment entry is not in accordance with the act of December 12th, 1888, found in the Acts of 1888-9, on page 14, which provides, that if “the suit is by a mortgagee or his assignee against the mortgagor or one holding under him, if the mortgage debt is ascertained to be less than the value of the property sued for, then such judgment must be for the property sued for, or the amount of the mortgage debt.” It is evident that it was the intention of the court to comply with this statute, and the interest of the defendant seems to be fully protected.

The judgment in form will be here corrected, and as corrected, the judgment will be affirmed.

Corrected and affirmed.