115 Ala. 226 | Ala. | 1896
Under section 2720 of the Code as amended by the act of 1893 — Acts, 1892-93, p. 1127— any matter of defense which would be available against
On the other hand, where the question arises upon
■ In the foregoing observations we have assumed that the last clause of section 2720 as amended reads as follows : “To show title the defendant may.plead payment, accord and satisfaction, or otherwise, as he could to a note or. other obligation made for the payment of money.” A like assumption has been indulged by this court whenever this statute has come under review. Powell v. Crawford, 110 Ala. 294; Lewis v. Simon, 101 Ala. 547. In point of fact the statute as enrolled • and as published employs the word plaintiff instead of 'the word defendant in the provision referred to. It is so entirely obvious, however, that the use of the word “plaintiff” is the result of a clerical misprision and that defendant was intended, that the error corrects itself and
The application of our views of 'the law to the present case leads us to the conclusion that the circuit court erred in striking out defendant’s original second plea, on the ground that it set up usury, partial want of consideration and payment in part. This error forced- the defendant to set up these several matters in separate pleas. As none of these separate pleas in and of themselves respectively showed a defense to the action, since neither the usury, nor the payments made nor that part'of the nominal debt for which there was no consideration, independently considered, showed' full satisfaction of the mortgage debt, the demurrers to them severally, for that they were pleaded in bar and failed to answer the whole case, should, abstractly speaking, have been sustained. But in submitting to the jury upon these several pleas the question whether the real mortgage debt had been satisfied, the court did no more than it should have done under the original second plea, and hence no more than the defendant had a right to demand; and the error committed against .the appellants by overruling their demurrer to the amended pleas is so counterbalanced, so to say, by the error committed at their instance and in their favor by sustaining their objections to the original plea, and the error against them resulted so directly from the error induced by them and to their advantage, that they cannot now be heard to complain.
The judgment of the circuit court is affirmed.