Horton v. Barlow

108 Ala. 417 | Ala. | 1895

HEAD, J.

Debt by appellee, Barlow, against appellant, Horton, for the statutory penalty of $200, for defendant’s alleged failure, upon written request, to enter satisfaction of a mortgage, as required by section 1869 of the Code of 1886. The defendant objected to the introduction of the original record, from the office of the judge of probate of Conecuh county, of what purported, to be a mortgage executed by the plaintiff to the defendant, . on May 7th, 1887, filed and recorded May 10th, 188.7,. and. acknowledged, in..the form, prescribed by.the statute, on- the 8th- day of . November, 1887 — some six months after its registration. The grounds of objection were : 1. The record of the mortgage is not self-proving.. 2. It is not a transcript of the record. 3. The mortgage, as recorded, was not acknowledged or proved as required by law. The court overruled these objections and admitted the said record in evidence, and defendant excepted. As the case is presented by the bill of exceptions, it is not necessary that we pass upon the objections. See, however, as to the second ground, Huckabee v. Shepherd, 75 Ala. 342. Evidence was admitted, without objection, showing, without conflict, that the mortgage, the record of which was admitted, was, in fact, executed by the plaintiff to the defendant, and the record of it was admissible to prove the fact that it had been recorded,'as averred in the complaint. Hence, if it could be said that there was error in admitting the record, without limitation, in the first instance, the error was cured by the subsequent introduction of proof of the execution-of the mortgage of which the record was a copy. Kendrick v. Latham, (Fla.) 6 So. Rep. 871 ; 25 Fla. 819. The mortgage is awkward ly drawn. The most that can be claimed by the appellant is, that it secures the payment of the note therein recited, for $20.50, with the interest thereon ; the cost of probating and recording the mortgage ; all expenses of foreclosure and sale and all future advances that might have been made, on the mortgage. At the request of the plaintiff, the defendant paid, for him, to the register in chancery, $20., in a divorce case. The only evidence of tñe time this occurred was that of the plaintiff, who testified that it was after the mortgage matured. The account introduced bjr defendant does not show when it was paid. The evidence of the plaintiff tended to show that this $20. was not paid “on the mortgage,” but that it was an entirely separate and distinct transaction. It seems that the parties, in the fall of 1887, entered into some timber getting arrangement; and plaintiff’s evidence tended to show that they had a settlement of the timber transactions, and in that settlement the defendant charged him with the $20. and he paid it; that the timber transactions had no relation-to, or connection with the mortgage. In this state of the record, the defendant requested the court to charge the jury “That the $20'. paid Rabb on the divorce is..a debt secured by this mortgage, if you believe from, the evidence that defendant, paid-said sum .after'the.execution1 of- the mortgage as shown by account in evidence before you.” It is most manifest the court properly refused the charge.

There is no available error in the record and the judg- ' ment of the circuit court is

Affirmed.