119 Ala. 282 | Ala. | 1898
The appellee filed his bill to foreclose two certain mortgages executed by Elias Judkins in which his wife joined for the purpose of conveying her dower interest. The first of these mortgages was executed to the British & American Mortgage Company, Limited, to secure a loan of money, and which mortgage was assigned to complainant. The second was executed directly to complainant to secure a further loan of money. The British & American Mortgage Company was not made a party to the suit, and the question was raised, that the legal title was not before the court. The bill shows that subsequent to the endorsement of the notes and assignment of the mortgage, which were in writing, and which standing alone, it may be conceded did not contain apt words to convey a legal title, “On 'the 21st of May, 1894, to carry out its original purpose of conveying the legal title to the property named in said mortgage and for-dollars received, sold and conveyed all its interest in said lands to plaintiff.”- — Code of 1896, §983, (Code of 1886, §2694); Wisdom v. Reeves, 110 Ala. 418. This conveyance is made an exhibit to the bill, and reads as folllows: “For value received from Leon Loeb, the undersigned, British & American Mortgage Company (Limited), hereby transfers and assigns without recourse, the within mortgage to the said Leon Loeb, and sells and conveys without warranty to him, the said Leon Loeb, all the right, title and claim of the said British & American Mortgage Company (Limited) to and in the lots herein named; all without recourse on the said British & American Mortgage Company (Limited). (Signed) The British & American Mortgage Company (Limited), by S. Jemison, E. F. Browning, Directors. Witness: Geo. M. Zeb as to signature of E. F. Browning.”
It is contended by appellant that complainant has offered no evidence of the authority of Jemison and Browning, or either of them, to execute said conveyance. The bill avers directly that the British & American Mortgage Company (Limited) executed the conveyance and the assignment, and both are made, as stated, exhibits to the bill. Section 3296 of the Code of
After Elias Judkins had filed his answer, and a portion of the evidénce had been taken, he died. His administrator was made a party respondent, who ansAvered the bill. Subsequently the bill Avas further amended by averring, that Elias Judkins died intestate, and that respondent, Addie Judkins, his Avife, was his only heir and distributee. The respondents filed no answer to the bill as thus amended, and it is now insisted that as there Avas no evidence offered to sustain the amendment, the court must presume there Avere other heirs. We are unable to perceive any reason for such a presumption. The averment was not denied either by the wife or the administrator, both of Av’hom Avere parties respondent and in court at the time of the decree of the court, allowing the amendment to be made. The complainants were not called on to offer any evidence in support of the averment, at least so far as these respondents are concerned.
Interrogatories and cross-interrogatories were propounded to the complainant and his brother, and copies Avere served upon each of them. When they appeared before the commissioner appointed to take their depositions, each had a paper from which, apparently, each read the answers to the seA^eral interrogatories and cross-interrogatories. Objection Avas made by appellant at the time, to the reading from the prepared statement ansAvers to the interrogatories. Before submitting the cause for final decree, the appellants moved the court to suppress these depositions, upon the grounds, that their ansAvers had been prepared beforehand, and that the witnesses did not answer otherwise than by reading the prepared statement. It cannot be doubted that the answers of witnesses to interrogatories and cross-interrogatories, not made from the witness’ OAvn recollection, should be suppressed. A Avitness may very properly use a memorandum to refresh his memory as to dates, names,
Reversed and remanded.
