89 Ala. 625 | Ala. | 1889
Section 2707 of the Code, which authorizes the defendant, in an action by a mortgagee or his assignee, to recover the land conveyed by the mortgage from
The special pleas interposed by the defendant, relying upon usury in the original debt, of which the mortgage debt was a renewal, and on set-off, presented, therefore, immaterial issues, and should have been stricken out on demurrer. Demurrers were filed, but it does not appear that any action was had on them. The record shows affirmatively that the plaintiff took issue on these insufficient pleas, and upon that issue went to the jury. The court excluded all testimony offered in support of the pleas. This was error, for which the judgment must be reversed. The doctrine is- too well, and has been too long established in this court, that, if the parties make up a false issue, evidence must be received upon it, and it must be submitted to the jury, to be now questioned.—Watson v. Brazeale, 7 Ala. 451; Masterson v.
The judgment of the Circuit Court is reversed, and the cause remanded.-