Phillips v. Morris

53 So. 1001 | Ala. | 1910

DOWDELL, C. J.

This is an action in detinue for the recovery of specific chattels. The plaintiff bases his title and right of recovery on a mortgage executed by one T. M. Phillips, since deceased.

The first contention in error is that the trial court erred in permitting the-plaintiff against the objection of the defendant to testify as to the amount due on the mortgage. This, upon the ground that the mortgagor being dead, plaintiff was incompetent under the statute to testify as to any transaction with the deceased. —Code 1907, § 4007. The contention is without merit. The suit is not one in which the estate of the deceased is interested in the result. The defendant does not pretend to hold in privity with the deceased mortgagor. As between the plaintiff and defendant, the result of the suit would determine nothing as to the interests of the decedent’s estate, and hence his estate could not be interested in the result of the suit. — Snellgrove v. Evans, 165 Ala. 322, 51 South. 560.

The recovery of attorney’s fees was not within the issues, and evidence as to reasonable attorney’s fees was irrelevant and inadmissible; but as no recovery was had for such fees, the error of admitting this evidence was harmless.

While the verdict of the jury might have been more •definitely expressed, we think it sufficiently shows a finding for the specific property sued for and for the ascertainment of the alternate value of the articles, respectively, to support the judgment.

The defendant not being the mortgagor, nor his transferee, nor holding under him, was not entitled to have the mortgage debt ascertained, under the provisions of the statute. — Code 1907, § 3789.

That part of the oral charge of the court set out in the bill of exceptions, and to which an exception was reserved, was error. To justify a verdict in a civil case, no more is required than that the jury should be reasonably satisfied of the facts upon which the verdict was based. — Rowe v. Baber, 93 Ala. 422, 8 South. 865; Behrman v. Newton, 103 Ala. 525, 15 South. 838; Harris v. Russell, 93 Ala. 68, 9 South. 541; 3 Mayfield’s Digest, p. 598, § 3198, also p. 600, § 3236.

There was evidence tending to show the insanity of T. M. Phillips when he executed the mortgage, and under the issues on this phase of the evidence, we think that charge 1, requested by the defendant, correctly stated the law and should have been given, and that its refusal constituted reversible error.

For the error indicated, the judgment must be reversed.

Reversed and remanded.

Simpson, McClellan, and Mayfield, JJ., concur.