98 So. 190 | Ala. | 1923
Plaintiff in the trial court, appellee here, brought two suits, the cause of action in one being alleged as a "note of contract," and in the other as a promissory note, both payable to the order of S. L. Watson, *351 and indorsed by him to plaintiff. These two separate and several evidences of debt were given to secure the purchase price of a jack, bought by defendants from Watson. These causes were consolidated and proceeded to judgment on two counts, as briefly indicated above, designated counts 4 and A, all others being eliminated by amendment.
One of the counts stricken by amendment was a count in detinue for the jack, the right to possession being claimed "under and by virtue of a lien executed by defendants to one S. L. Watson on March 3, 1919, to secure the sum of $200, and which mortgage lien note was duly transferred to plaintiff before maturity." The demurrer to the amended complaint, taking the ground, in effect, that by insisting on the title to the jack, plaintiff had waived the alleged cause of action, was not tenable, after the amendment at least, for plaintiff had taken nothing under its original complaint. It is held that a mortgagee has three several concurrent remedies against the mortgagor: An action at law to recover the debt; an action to recover possession of the property; a bill in equity to foreclose the mortgage. Ex parte Logan,
Defendants pleaded (plea 2) that the notes sued on were given for the purchase price of the jack, and — to state the plea in brief — that their execution had been procured by the false and fraudulent representations of Watson as to the quality of the animal. To this plea plaintiff replied by replication 2 that "the plaintiff acquired said notes for value before maturity and without any knowledge or notice of the defense set up in plea two." Appellants (defendants) allege that the court committed error in overruling their demurrer to this replication. The demurrer calls attention to the use of the word "acquired" instead of "purchased" and to the absence of an allegation that plaintiff was a holder in due course. German-American Bank v. Lewis,
Defendants' second special rejoinder was "that in and by the said note sued on it was stipulated and provided that the title to the property for which the note was given should remain in the payee, and upon failure to pay said note at maturity the said property for which it was given was to be repossessed by the payee." Plaintiff's demurrer was sustained. The purpose of this rejoinder was to alleged facts destructive of the negotiability of the instrument in suit. Under section 4962 of the Code, subsec. 4, as interpreted by the courts in this state, the provision of the instrument giving, as we construe the rejoinder, the holder an election to take the property in lieu of payment of money, did not destroy the negotiability of the instrument. First National Bank v. Slaughter,
Rejoinder 4 repeated the allegations of rejoinder 2, and added:
"That said instrument was executed in and payable in the state of Tennessee; that under the laws of Tennessee, existing at said time, said instrument was nonnegotiable."
Notwithstanding the added averment, this rejoinder was demurrable, for that it failed to set forth the law of Tennessee which had effect according to the conclusion of the pleader. Holmes v. Bank of Fort Gaines,
"No demurrer in pleading can be allowed but to matter of substance, which the party demurring *352 specifies; and no objection can be taken or allowed which is not distinctly stated in the demurrer."
The trial court should have overruled the demurrer, and put defendant to specific assignments, or, failing that, to issue on the rejoinder. Milligan v. Pollard,
Appellants argue that the trial court committed reversible error in sustaining the demurrer to rejoinder 1. Rejoinder 1 was the general rejoinder, to which no demurrer was addressed as appears from the written demurrer on file. We do not, therefore, construe the judgment entry as showing that the court sustained a demurrer to the general rejoinder.
Reversed and remanded.
ANDERSON, C. J., and GARDNER and MILLER, JJ., concur.