124 Ala. 638 | Ala. | 1899
— -Detinue for the recovery of chattels in specie.
The case aauis tried upon the 1st plea,- — that of the general issue; the 2nd and 5th, in substance, that the mortgage debt had been fully paid; before the commencement of this suit; the 6th, that the note, Avhich the mortgage Avas given to secure, was tainted with usury and void as to the interest, and that defendants hold the mortgage property under a purchase from the mortgagor, J. H. Holmes; and 7th, that since the execution of the note, the same had been changed in a material sense, without the consent of the maker, in that the note as executed, read with 8 per cent, interest per annum from date, which was the 24th day of March, 1894, and the word date was stricken out, and in its place, the words, “January 20th, 1893,” were inserted in lieu thereof. It is unnecessary to notice the 3rd amended plea, setting up alterations in the mortgage, since such alleged alterations are obviously immaterial and are not noticed in the evidence.
As Ave have seen, the mortgage bore on its face evidences of a material change in it, and the indorsements, prima- facie, showed payment in full, and satisfaction of the mortgage debt. Without an explanation of these matters, — suclr as Avould tend to show that the alleged change had not been made in the mortgage, but that it was then, as to that matter, just as it Avas Avritten and executed in the beginning, and that there Avas a mistake in the recitals of said receipt, of the payment of said mortgage, and that the same was incorrect, — the evidence Avas not properly admissible at the time it Avas offered. It Avas certainly prematurely admitted. But, the plaintiff, seeming to recognize that the burden Avas on him to make these explanations, assumed it, and proceeded to offer evidence tending to show that no change whateA'er had been made in said mortgage, and further, that the indorsement of satisfaction of the mortgage, Avas a mistake, brought about by a failure to observe that the note bore interest from a date anterior to that up to which it Avas calculated when the indorsement Avas made. This proof rendered the mortgage admissible in evidence, and cured the error of its premature admission. The defendant offered evidence tending to show, that the alleged alteration in the mortgage had been made since it Avas executed by him and was made without his knowledge or consent, and that said indorsement spoke the
For the errors indicated, the judgment will be reversed and the cause remanded.
Reversed and remanded.