41 So. 765 | Ala. | 1906
— This is an action of detinue, commenced on the 30th day of November, 1904, by A. S. Clark against J. D. Holman to recover a mule. The plaintiff obtained judgment in the circuit court, from which the defendant prosecuted this appeal.
In the complaint the mule is described with .particularity, the description being as follows: “One dark bay mai e mule about 7 years old, named ‘Bert,” known as the McKnight mule,’ sold to J. J. McKnight about two or three years ago by A. S. Clark.” The plaintiff’s right to recover is based on a mortgage executed by J. J. McKnight to him on the 13 th day of February, 1903. On the trial, which occurred at- the spring term, 1905, the plaintiff testified as follows: “I know the mule for which this suit is brought. She is a black mare mule about 11 years old. She is the same mule claimed in the complaint heretofore read to the jury. She is my mule. I traded for her from one Wilkinson. I traded him an iron gray horse mule for her. McKnight. from
Objection was made to the introduction of the mortgage on the ground that there was a variance between the description given in the complaint and that contained in the mortgage. Besides the general objection of variance, the specific grounds assigned relate to the color and age of the mule. The objection Avas overruled. Before considering the ruling of the court on the objection, we Avill dispose of two- exceptions that were taken to rulings on the admissibility of evidence. After the mortgage was read to the jury, the plaintiff, further testifying, said: “The mule was mine up to the time that said mortgage was executed, and it was so understood.” In view of all the evidence preceding it, the court did
The plaintiff further testified that at the time he took the mortgage from McKnight to himself the relation of landlord and tenant existed between him and McKnight, McKnight being on plaintiff’s farm in Barbour county, Ala.; that the relation of landlord and tenant had existed betAveen him and McKnight for several years; and that he had furnished McKnight several mules besides the one in controversy. “The defendant objected to the plaintiff so testifying as to the several year's’ tenancy of the said McKnight, upon the grounds that it is immaterial, illegal, and incompetent evidence.” The part of the evidence referred to in the objection, “the several year’s tenancy,” we think Avas properly allowed. It Avas explanatory of McKnight’s possession of the mule prior to the time the mortgage was executed. The plaintiff then testified that no price Avas agreed on .between him and McKnight for the mule and no price for her was ever charged on his books.
Recurring to the admissibility of the mortgage as evidence : “It is a general rule that the substance of the issue must be proved, and any departure in the evidence from the substance constitutes a variance, and is fatal.” Another rule stated by Mr. Greenleaf is that “Avhatever cannot be stricken out without. getting rid of a fact essential to the cause of action must be retained, and, of course, must be proved even though it be described with unnecessary particularity.” —1 Greenleaf on Ev. §§ 195, 200; Johnson v. Whitfield, 124 Ala. 508, 27 South. 406; Gulf City Shingle Co. v. Bayles, 129 Ala. 192, 29 South. 800. With respect to the color of the mule given in the complaint and that given in the mortgage, Ave do not think the variance was sufficient to exclude the mortgage from the jury. There was substantial correspondence, at least to the extent to make the identity of the mule in this respect a jury question.—Connally v.
The execution of a mortgage to the hank of Abbeville by the plaintiff, after he received the mortgage from McKnight, on all of plaintiff’s property, and in which he did not include the mule in controversy, was immaterial to any issue in the case, and was properly disallowed.
The defendant claimed title to the mule under a mortgage executed by McKnight to him prior in point of time to the plaintiff’s mortgage. The proof showed that McKnight was in possession of the mule when defendant’s mortgage was executed. In this condition of the proof witness Wells should have been allowed to testify that McKnight at the time he executed the mortgage,. claimed the mule as his own. Declarations of one in possession of property, explanatory of his possession, are competent.' This point has been many times decided by this court.—3 Mayfield’s Dig. p. 456, § 405; McBride v. Thompson, 8 Ala. 650; Gary v. Terrill, 9 Ala. 206; Thompson v. Mawhinney, 17 Ala. 362, 52 Am. Dec. 176;
As the case must be reversed on the admissibility of evidence, and the evidence may not be the same on another trial, it is unnecessary to consider the correctness or not of the giving of the affirmative charge for plaintiff. There was no error in refusing the charge requested by the defendant.
For the error pointed out, the judgment must be reversed, and the cause remanded.
Reversed and remanded.