Lynn v. Bean

141 Ala. 236 | Ala. | 1904

HARALSON, J.

1. There was no error .in overruling the demurrer to the complaint. No particular form of words is necessary to constitute a sufficient request to enter on the margin of the record of a mortgage a partial payment or payments on the mortgage. All that is necessary in such notice is, that the words used in the request are such, as shall reasonably inform the mortgagee that entry of payment is desired. If such be its reasonable wording, the mortgagee mast act upon it. The particular mortgage in question is identified by date; the amount of the payment made thereon is stated; the written request of the mortgagor to enter on the margin of the record such payment, and the failure of the defendant to do so within the time required by law, are all* disclosed in the complaint, and sufficiently certain to save it from the demurrer interposed to it.— Jordan v. Mann, 57 Ala. 597 ; Steiner v. Snow, 80 Ala. 45; A. S. B. & L. Association v. Bowie, 121 Ala. 469.

The suit was brought on the 15th of March, 1902, under section 1065 of the Code of 1896, and was tried and judgment- rendered in it, on the 30th of October, 1902. It was unaffected, therefore, by the Act of the 10th of October, 1903, amending that section and section 1066 of the Code. If tbe suit bad been instituted after tbe passage of tbe last named Act, it may be that the demurrer to the complaint should have been sustained.

2. The ruling striking pleas 3 and 4 cannot be here reviewed. Tbe motion to- strike does not 'appear in tbe bill of exceptions; and, that such motion was made and acted upon by the court, appears no where in tbe record, except ill the judgment entry in tbe cause. — Jones v. (Sty of Anniston, (Ala.) 35 So. Rep. 112; Logan v. Adams Machine Co., 135 Ala. 475.

3. There was no error in tbe ruling allowing plaintiff to introduce in evidence tbe written request served on tbe defendant to enter on tbe record tbe partial payment he had made on the mortgage. It was not liable to any objection interposed to its admission, and at tbe time it was offered, there was no evidence that the mortgage bad been fully paid or satisfied.

4. There was) no error in refusing to allow tbe plaintiff’s witness, Wm. Bean, to answer tbe question on his-cross by defendant: “Did not the defendant, when yon gave him this notice, tell you that this 1900 mortgage had been settled and satisfied, and that your father (the plaintiff) could have the original mortgage any time he called for it?” The objection interposed was, that the defendant could not be allowed in this way to malee evidence for himself. If what be offered to prove by tbe witness was true, it was his own ex parte statement made1 in his own interest, and in the absence of the plaintiff.

5. The defendant offered to prove, and was not allowed, against the objection of the plaintiff to> do so, that lie bad entered on tbe record on March 20th, 1902, that tbe.mortgage was satisfied. This was more than* thirty days after the written request to .enter the partial payment On the record, and after this suit was commenced; whatever rights the plaintiff was entitled to-, were to be determined by what occurred before, and not what oc--corred after suit brought.

(>. There were two. mortgages from plaintiff to defendant which were testified about, one on real estate, ■ which has been paid since this suit was commenced, and tbe other, a chattel mortgage on plaintiff’s crop- raised in 1 DC0, for an indebtedness of $45.00, that plaintiff owed defendant, other than the land mortgage debt which was about four years older than the last mortgage. The evidence also tended to show, that the plaintiff owed defendant an open or hook account fob various things furnished him by defendant in 1900, which was not covered by any mortgage. The plaintiff’s evidence tended to show, that when he made this payment of $23.50 on the oth of April, 1901, he directed defendant to apply to- it the $45.00 mortgage debt, and not to the hook account, which request defendant disregarded, and insisted on applying it to the open or book account. The evidence for the defendant tended to show, that the plaintiff made no such request, as to the application of said payment, and. he applied it to the open or unsecured account. Defendant gave a, receipt to- the plaintiff, at the time, for this sum, specifying that it was paid on the book account, to which plaintiff testified he objected, ■because he desired the payment to go on this chattel mortgage, but defendant refused to change the receipt, and plaintiff retained it because he desired to- have some! showing for his money. Defendant testified, that the payment, was made on the hook account, and not a word was said at the time about a mortgage. ■ His evidence also tended to show, that this chattel mortgage, by an agreement and understanding between him. and plain-' tiff, in October or November, 1900, was satisfied, and defendant forgave him this mortgage as a claim against him. This agreement the plaintiff denied.

7. The 1st and 2nd charges requested by plaintiff were free from error. The first is but the assertion of the well settled rule, that as a payment on the part of a debtor is voluntary, he may direct its application when it is made, or at any time before the creditor, in the absence of such direction, has applied it. — Petty v. Dill, 53 Ala, 645.

Charges 4 and 5 for plaintiff Avere also free from error.

Charge 2 requested by defendant was properly refused'. In effect it improperly instructed, that the receipt, as it road, was binding and could not be explained by oral evidence, even if shown not to be in accordance with the intention of the parties. — Cleere v. Cleere, 82 Ala. 581.

It required a valuable consideration for the alleged release of the mortgage debt. — M. J. & K. C. R. Co. v. Owen, 121 Ala. 512; Crass v. Scruggs, 115 Ala. 258.

Charges 3 and 4 fob defendant would have authorized the jury to find that, thei mortgage had been released, although there was no consideration for the release. The burden was on the defendant to show consideration for release.

Defendant’s charge numbered 5, was. subject to the vice of being argumentative and in emphasizing a particular phase of the evidence.

No error appearing, the judgment must be affirmed.