Pinckard & Lay v. Bramlett

51 So. 557 | Ala. | 1910

SAYRE, J.-

— Bramlett sued Mooney in detinue for mules. Upon the suggestion of Mooney, made in accord; anee with the statute in such cases, Pinckard & Lay were cited, and came in as substitutionary defendants. Upon trial had without a jury, judgment was rendered for the plaintiff. Hence this appeal.

Plaintiff claimed as mortgagee in a mortgage past due and unpaid, and not otherwise. Defendants claimed under a mortgage of later date, also past due and unpaid. Defendants pleaded the general issue, and also special pleas, in which they set up an estoppel against the plaintiff to insist upon his prior mortgage. Plaintiff made out a prima facie case for recovery by the introduction of his mortgage and Mooney’s testimony that it was yet unpaid. On cross-examination, after proving their later mortgage, defendants proposed to ask the witness whether he had not on several different occasions stated to several persons — occasions and persons being identified in the questions — that he had paid plaintiff’s mortgage debt. The court sustained objections to these questions and subsequently, when defendants offered to prove by the persons named that the witness Mooney had made the statements inquired about, ruled that they could not be permitted to do so. These several rulings are assigned for error. The testimony of the witness Mooney, as it appears in the record, was relevant to both issues presented. It will he conceded that so far as the estoppel was concerned, it was immaterial whether the plaintiff’s mortgage debt had been paid or not, because the question there was, not whether the mortgage had been discharged by payment of the debt secured, but whether plaintiff, having a mortgage, had induced defendants to believe he had none. But appellee contends that payment vel non of his mortgage debt was, in the absence of á special plea, of payment, immaterial, and cites Harper v. Weeks, 89 Ala. 577, 8 South. 39. Apparently the part of the opinion in that case relevant here was not necessary to the decision. At any rate, payment of a mortgage debt did always divest the legal title of the mortgagee to personality. — Slaughter v. Swift, 67 Ala. 494. Consequently, proof of payment is a denial of the mortgagee’s cause of action, and may be shown in detinue under the general issue. — Carlisle v. People’s Bank, 122 Ala. 446, 26 South. 115. Such, also, is the rule in respect to real property and actions of ejectment. — Code, § 4899; Abbett v. Page, 92 Ala. 571, 9 South. 332. In the several rulings to which we have referred there was error.

We need not consider whether there was error in sustaining demurrer to plea 2. This plea, with some difference in verbiage, seems to set up substantially the same facts as were alleged in plea 3, the demurrer to Avhich was overruled. While not conceding that it was necessary to plead specially the matter urged by way of estoppel, we are hardly prepared to say, on the presentation of the case made, that the defendants have proven to our l-easonable satisfaction the matter of the estoppel pleaded.

In order that tbe defendants may have the benefit of their proposed evidence, which may affect the credibility of the plaintiff’s witness, and so the plaintiff’s case generally, and that all issues may be determined in the light to be thereby afforded, the judgment of the court below will be reversed, and the cause remanded for another trial.

Reversed and remanded.

Dowdell, G. J., and Anderson and Mayfield, JJ., concur.