52 Ala. 112 | Ala. | 1875
The questions presented in this case, as to which we have felt any doubt or embarrassment, involve matter of fact rather than of law. They are of that character in the decision of which absolute certainty is unattainable. The positive evidence is conflicting, but is reconcilable probably, so as to support either party, without an imputation of bad faith to witnesses or parties. The main fact in controversy is whether, by the acceptance by a mortgagee of a second mortgage, a prior mortgage was extinguished. Or, whether a parol agreement that the second mortgage should so operate, made by an agent of the mortgagee, was with authority ; or if not with authority, whether it was subsequently ratified by the mortgagee. No legal presumption intervenes to aid in the determination of the facts, nor is there any definite standard as to the quantity of evidence necessary to prove or disprove them.
The second mortgage, in the absence of a release, or of some covenant or agreement that it should operate as a satisfaction of the first, is deemed merely an additional security for the debt. Gregory v. Thomas, 20 Wend. 17 ; Boyd v. Beck, 29 Ala. 704. The agreement may rest in parol. 1 Hilliard on Mort. 455-473.
The appellee seeks a foreclosure of the prior mortgage, and its extinguishment is an affirmative fact, set up in bar to the relief. It is matter of defence ; the burden of its proof is cast on the appellants, who rely on it. If the evidence as to the fact is equally balanced, the defence is not established. Or, if there is a mere preponderance of evidence tending to support the fact, it cannot be made the basis of a decree or judgment. Mays v. Williams, 27 Ala. 267 ; Jarrell v. Lillie, 40 Ala. 271. In Mays v. Williams the court say: “We think, also, that the court laid down the law too broadly, when it instructed the jury that in civil causes they were bound to find according to the preponderance of the testimony. Whatever facts are necessary to be established — whether by the plaintiff to give him
It has become the settled practice of this court not to disturb the decision of a chancellor on a question of fact, unless there is a decided preponderance of evidence against the conclusion he attains. Phillips v. Phillips, 39 Ala. 63 ; Gordon v. Jones, 42 Ala. 146 ; Kennedy v. Marrast, 46 Ala. 161; Bogan v. Daughdrill, last term. The rule is extended to the judgments of all primary courts on questions of fact. Dane v. Mayor of Mobile, 36 Ala. 304; Kirksey v. Kirksey, 41 Ala. 626. The rule is probably too strongly stated in some of the cases. It is only an expression of the general rule prevailing in appellate courts, that error must be affirmatively shown ; it is not enough that the court cannot see the judgment of the primary court was right; unless shown to be wrong, the presumption of correctness arises. 1 Brick. Dig. 781, § 120.
The disputed facts in this cause resting largely on the intention of the parties, and the direct, pQsitive evidence being in,
We have carefully reviewed the evidence, and we cannot declare that we are fully convinced the chancellor erred in the conclusion he attained.' We may not see elearly that his conclusion is right, but we must see clearly that it is wrong, or it is supported by the presumption of correctness the law commands us to indulge. The decree is affirmed.