110 Ala. 294 | Ala. | 1895
The complaint is in detinue by J. R. Crawford, the appellee, against F. A. Powell, the appellant. The defendant pleaded the general issue and seven spécial pleas. The court on motion of the plaintiff struck out six of these pleas, and these rulings are the only assignments of error.
As a plea of usury, the 3d is wholly lacking in aver ments necessary to make it good.—Code, p. 797, form 38; Munter v. Linn, 61 Ala. 492; Masterson v. Grubbs, 70 Ala. 407; Woodall v. Kelly, 85 Ala. 374. Besides, usury in a debt secured by mortgage, does not affect the validity of the mortgage, any part of the debt remaining un
The fourth plea is vague, uncertain and wholly lacking as presenting a defense on which plaintiff could be required to take issue.
Section 2720 of the Code, as amended, (Acts 1892-93, p. 1127), reads, that “If the suit is by a mortgagee or by his assignee against the mortgagor, or one holding under him, the defendant may, upon suggestion, require that the jury ascertain the amount of the mortgage debt,and such ascertainment must be entered on the record of the judgment, and the court must order, that if the debt so ascertained, interest and costs, be paid within thirty days, no exe cution or other process shall issue on the judgment ; and on payment thereof to the plaintiff or to the clerk for his use, the clerk must on the face of the record of the judgment, endorse the fact of such payment, and after such payment the plaintiff shall be deemed the unsuccessful party, within the meaning of the succeeding section, and before or after the last day of the mortgage, the defendant may plead to the consideration of the instrument relied upon. To show title the plaintiff may plead payment, accord and satisfaction, or otherwise, as he could to a note or other obligation made for the payment of money.” It is clear, that the defendant may plead against the mortgage, any defense which would be good against the debt secured by it, if the suit had been brought on it. But, plea 4i is not the suggestion contemplated by said section 2720'of the Code as amended. It is distinctively a plea in bar. As such it is defective. It is not good as a jffea of payment of the mortgage debt; and the allegation that there is nothing due on the mortgage at che time the plea was filed, does not negative the fact, that something may become due on it in the future.
The seventh plea was bad. It does not set up the facts relied on to show the mortgage was void.
The 5th and 6th pleas should not have been striken out. They set up, the one, a failure, and the other, a want of consideration in the mortgage. Section 2720 of the Code as amended authorizes such pleas to be interposed by the mortgagor.—Lewis v. Simon, 101 Ala. 547. As to the 5th plea, it may be added, that -if it be said,
For striking out these two pleas, the cause must be reversed. The proper practice to dispose of the other • pleas we adjudge bad, was by demurrer to them, to test their sufficiency, rather than by motion to strike them out. The pleas were not frivolous on their face. If demurred to for defects pointed out, the defendant might have amended and cured such defects ; but, when stricken out, on a general motion, alleging no defects, the defendant was deprived of this opportunity.—Lindsay v. Morris, 100 Ala. 550.
Reversed and remanded.