Pearson v. Hancock & Son

77 So. 934 | Ala. Ct. App. | 1918

The several rulings of the trial court on the refusal to give written charges at the request of defendant, and the exceptions to a portion of the court's oral charge cannot be reviewed, as neither the general charge of the court nor the refused charges are set out in the record, as is required by the Acts of 1915, p. 815.

Assignment of error No. 1 is not well taken. The witness testified that the rental contract between the landlord and mortgagor was not in writing, and hence it was perfectly competent for the witness to testify that the mortgagor had rented the premises and was in possession at the time the mortgage was executed. 4 Mayf. Dig. 37, §§ 159-161.

The other assignments of error are based upon the action of the trial court in permitting the introduction of the mortgage through which plaintiff claimed title to the property, for the conversion of which the suit was brought, without proof of its execution by the mortgagor. The plaintiff claimed title through this mortgage. It was not self-proving, and therefore it became necessary for him to prove its execution. Seibold v. Rogers,110 Ala. 444, 18 So. 312. We cannot agree with counsel for appellee that the rule as laid down by Mr. Justice Head in the Seibold Case is unsound; on the contrary, it is based on the soundest of reasoning and common sense, and to hold otherwise would be to open the door to all sorts of fraud. But the bill of exceptions shows that the trial court admitted this mortgage without proof of execution, in anticipation of its proof later, and expressly reserved the right to rule on the question later. At the close of the evidence, the defendant again called attention to the error by a motion to exclude the mortgage, on the sole ground that its execution had not been proven, whereupon the plaintiff offered to call a witness to make this proof. The defendant objected to this, and the court sustained the objection. This was an offer to make the very proof required by defendant, and to correct an error theretofore complained of by him. It cannot be presumed that the trial judge sustained defendant's objection because the evidence had been closed, for the offer had for its object the correction of an error made by the court. The court's action in sustaining the objection was doubtless based on the assumption that the defendant thereby waived proof of the execution of the mortgage, and as consent by him that the trial proceed without this proof. This is an invited error, of which the defendant cannot receive the benefit. 2 R. C. L. p. 238; 2 A. M. C. Dig. (Dec. Ed.) Appeal Error, § 882; Borden v. Croak, 131 Ill. 68,22 N.E. 793, 19 Am. St. Rep. 23.

There is no error in the record, and the judgment is affirmed.

Affirmed.