Karter v. Fields, 140 Ala. 352

140 Ala. 352 | Ala. | 1903

HARALSON, J.

This suit was instituted in May, 1894, by the appellee, Fields, against the defendant and appellant, Karter, and is an action in case to recover damages for the sale and removal of cotton, on Avhicli plaintiff claimed lie had a, lien by mortgage, of which lien defendant had knowledge or notice, whereby plaintiff was prevented from enforcing his said lien.

On the 14th of March, 1901, the defendant was, by the District Court of the United States for the Northern Division of the Northern District of Alabama, duly adjudged a bankrupt under the act of Congress relating to bankruptcy, and on the order and judgment of said District Court, made and entered on the 17th of November, 1901, he Avas duly discharged from all debts and claims which existed on the 4th of March, 1901, and which are made provable by said act against his estate, — all of which appears by a certified transcript of said bankruptcy proceedings in said District Court of the United States.

On the 25th of November, 1902, the plaintiff submitted in this court his motion to abate and dismiss this appeal, on the ground that since the appeal Avas taken, the defendant had been adjudged a bankrupt by said District court, and as such, discharged from all his debts, as shoAvn by his said motion and the certified proceedings of said court, attached thereto. On the same day, the cause was submitted for our decision on said motion and on its merits.

The OA'erruling of the demurrer to the amended complaint, on which the case was tried, is not insisted on.

The 2d plea was in substance the same as the 2d plea Avhen the case Avas here on the last appeal, (130 Ala. 430). The plea of the general issue had been pleaded. We then said, that “The general rule applicable to actions in case is, that proof in repression of damages may be made under the general issue.” This plea had been stricken, and the court added: “For this reason, [the one just quoted], and because not guilty was pleaded, it may be that the defendant Avas not injured by the court’s action in striking out the second plea.” The same principle applies, Avhere, as here, the court sustained plaintiff’s demurrer to the 2d plea.

A demurrer was sustained to the 3d plea. There is nothing in this plea that shows Avhen the acts set up therein occurred. If they occurred before the commencement of tlie suit,- — and the allegations must be so held, construing the plea most strongly against the pleader, — then, any acts therein set np could have been given in evidence under the general issue which was pleaded.—Karter v. Fields, supra. Furthermore, the plea seeks to set up the cancellation of the contract between Fields and Persall, as to the land on which the crops were grown. But, it is not available to this end. It falls short of setting up a rescission or cancellation of the contract. It only alleges, that Persall abandoned the lands, and that Fields, thereafter, before the commencement of the suit, entered upon said lands, assumed control of the same, and sold the same to another party.

The mortgage stipulates, if there was any default in the payment of either of said notes, it should become forecloseable, and that the mortgagee, his agent, or assigns, should have power to take immediate possession of said property, and proceed to sell it, in the manner specified therein. What is averred in the plea is consistent with the idea, that Fields foreclosed his mortgage under the power therein, and that his taking possession was in pursuance of the terms of the mortgage. The plea must he construed most strongly against the pleader.

These considerations dispose of assignments of error numbered 16 to 26, both inclusive. The evidence sought to be introduced was properly disallowed.

The fifth is a plea since the last continuance, and alleges that the debt, the consideration of the mortgage mentioned in the complaint has been paid or satisfied since this suit was commenced. It may be true, that if a debt has been satisfied, it has been paid, but the plea of payment and satisfaction are not the same. Whether a debt has been satisfied, depends upon the acceptance by the owner of the debt, of the thing offered in satisfaction. The plea fails to show that the plaintiff accepted anything in satisfaction of his debt. To be good as a plea of satisfaction, it should have gone further, and stated the facts constituting the satisfaction, and that plaintiff accepted what was done or offered in satisfaction.

The 6th plea is lacking in averment as one of res ad-judicata. It is true that it alleges the suit referred to between these parties, in which plaintiff recovered a judgment, was for cotton alleged by plaintiff to have been purchased by the defendant, during the year 1892 or 1893. The averment must be taken most strongly against the pleader, and must be construed as being for the cotton for the year 1892. This suit relates alone to cotton taken in the year 1893. The recovery, for ought appearing, in the other suit, was for cotton taken in 1892, and not in the year 1893. It was necessary to be averred that the subject matter of the two suits was identical.—Gilbreath v. Jones, 66 Ala. 132.

There was no error in allowing the amendment of the complaint striking out 1892 and inserting 1893. This did not make entirely a new cause of action. This amendment was simply a correction of the complaint as to the averment of the year in which the cotton was raised. Crimm’s Admrs. v. Crawford, 29 Ala. 623; Springfield F. & M. I. Co. v. DeJarnett, 111 Ala. 257.

The certificate from the District Court of the United States, of the adjudication in bankruptcy by said court of the defendant, J. EL Karter, and his discharge as such, recites “that said J. H. Karter is discharged from all debts and claims which are made provable by said acts (of Bankruptcy of the United States) against his estate, and which existed on the 4th of March, A. D. 1901, on which day the petition for adjudication was filed by him; excepting such debts as are by law exempted from the operation of a discharge in bankruptcy.”

There is not attached to the petition, nor is it otherwise made to appear, that the debts of defendant, from which he sought relief in bankruptcy, were duly scheduled, or if so, that the debt in this suit sought to be enforced, was among them, nor does it appear that the plaintiff had notice or knowledge of the proceedings in bankruptcy. It is stated by Mr. Collier, that “Jurisdic-' tion of the creditor now depends, not on the petition and the adjudication, but on the facts, either that the debt was ‘duly scheduled in time for proof and allowance,’ or, if not, that the ‘creditor had notice or actual knowledge of the proceedings in bankruptcy.’ ” — Collier on Bankruptcy, p. 200, subd. 3.

As there is nothing in the motion to dismiss the appeal, to sIioav that defendant was discharged in bankruptcy of the particular liability sought here to be enforced against him, the motion to dismiss the appeal must he denied.

It has appeared, that the plaintiff in the judgment below made this motion to dismiss the appeal, because the defendant had been adjudged a bankrupt. It is not denied that the judgment obtained by plaintiff against defendant, before his adjudication in bankruptcy, and the debt on which it was founded were such as the defendant might have been discharged from in the bankruptcy court. It is altogether probable, therefore, that in case of a reversal of the judgment, there wilb never be another trial in the court below. We deem it unnecessary, therefore, to pass upon the exceptions to the admission and rejection of evidence found in the record.

It will be altogether sufficient to ascertain, if in any of the charges given for plaintiff or refused to defendant, there was error for which the case must be reversed.

The court in its oral charge instructed the jury, that “Defendant is estopped from saying that Persall did not have title to the lands described in the mortgage.” In this there was error, for defendant was not estopped to show that Persall had no interest in the land Avhen he made the mortgage in 1890, to support the same on crops to be 'grown in 1893.

Again, in charge 17 the jury were instructed, “that although the mortgage recites that J. M. Persall and J. R. Persall (his wife) OAvned the land described in the mortgage, yet before you [they! can find from such recitals that J. M. Persall had an interest in the Archer. Place, you [they] must be reasonably satisfied that the lands described therein and the Archer place is the same land.” Whether the mortgage of 1890 from Persall to Fields, vested the latter with a lien on crops grown in 1893, depended upon whether Persall was the owner of the land on which the crops were grown in 1893, when be executed tbe mortgage in 1890 and this depended upon whether the land mortgaged was identical Avith the land included in the Archer Place, a question proper for the determination of the jury under the evidence.

For the error in these charges let the judgment below' be reversed and the cause remanded.

Reversed and remanded.