Scott v. Brassell

132 Ala. 660 | Ala. | 1902

HARALSON, J.

— The bill was filed to foreclose a mortgage1 on land. its first section averred, that on the 1 Btli January, 1888, 'the complainant'sold to defendant, Tlios. J. Scott, a certain described parcel of land; that said Scott, owed complainant $240, as a balance due on the purchase money therefor, and on the 23d January, 1888, he executed to complainant his promissory note therefor, payable on the 23d January, 1889, with interest from date, the original of Avhich it ivas averred was then in possession of complainant and unpaid, except that the interest was paid by said Scott on the 25'tih January, 1895. It is aivenred in section 3 of the hill, that at the time of the execution and delivery of said note, the said Scott and his wife, Mary A. Scott, executed and delivered to complainant in order to secure the said note, a mortgage on said tract of land so sold to said Scott by complainant, a copy of which mortgage is attached to the bill, and made a part thereof as exhibit B. It is further averred that the original mortgage had been lost or misplaced, and could not be found after diligent search, but the same had been duly probated and recorded, on the 3rd of May*, 1888, and complainant offered to produce a certified copy thereof from the records of the probate court. In the mortgage, it is recited that the mortgagor was indebted to the complainant in the sum of $240, evidenced by his promissory note bearing even date with the mortgage.

Scott amd his wife answered the bill, in which answer they aver that the debt mentioned in the note and the mortgage to secure same, had been fully paid before the commencement of this suit, and deny that complainant had in his possession the said note. They admit, however, all the allegations of said section 3 of 'the bill, which contained said mortgage as ani exhibit, which mortgage recited the mortgage debt of $240, and it was averred in that section of the bill, that the original mortgage had been lost. The oath to the answer was waived, and it was not sworn to.

Thomas J. Scott died during the pendency of the suit, and Mary A. Scott, having qualified as his executrix, filed a separate unsworn answer, in which she denied the allegation of the indebtedness of her testator as averred in the bill.

There was no testimony taken in the cause. The submission states: “The complainant being called, offers the following testimony, to-wit, (1) Original bill and exhibits; (2) Certified copy of the mortgage described in the bill; (3) Original note secured by mortgage; (4) Decree pro confesso v. Interstate B. & L. Ass’n; (5) Answer of Thomas J. and Mary A. Scott to original bill which answer was filed on the 8th April, 1899.” The defendant submitted on the answer of Mary A. Scott as executrix, with objection to proof by plaintiff of the mortgage by certified copy. The chancellor ordered a reference to ascertain the mortgage indebtedness, and afterwards rendered a final decree of foreclosure of the mortgage.

1. There was no error in admitting a duly certified copy of the mortgage from the probate court. Its loss was averred in the bill and admitted in the answer. Its execution was proved according to law, and it was recorded within twelve months from its date. — Code § 992.

2. There was no limitation of the purpose for which the answer of Scott and wife ivas introduced by complainant. It was offered as evidence without any qualification,—confessions and denials, together as a whole. The court ivas required to loot to the denials therein, as well as to the admissions.— Crawford v. Kirksey, 50 Ala. 590, 597. The answer denies the averments of the bill, that said Scott had never paid any part of said note, and that the same was still due, and contains the averment, as before stated, that the debt mentioned in the bill, to secure which said mortgage was given, was fully paid long before the commencement of the suit. An unsworn answer when it contradicts the averments of the bill, is mere pleading, and is entitled to no more weight as evidence than the bill, but it is required still, that the allegations of the bill be sustained by proof sufficient to overcome the contradictions of the answer. Latham v. Staples, 46 Ala. 462; Lockhart v. Troy, 48 Ala, 480; Rainey v. Rainey, 35 Ala. 282; Story Eq. Pl. 875, a.

But here, the complainant takes himself out of this attitude of the pleading, and introduces the answer of defendant as his own evidence, proving thereby the denials of the averments of his bill, on which its equity rested. It was supposed, the introduction of the note and the mortgage by complainant would do away with this denial. It may be, though we do not decide it, that such proof might- have been sufficient to sustain the bill, as against the meare denials of an unsworn answer; but the effect of such evidence could not prevail, as against denials of - the answer, made evidence by their introduction! as -evidence by complainant.

The situation is one, where greater justice may be subserved by not here rendering a decree, but by a reversal and remandment of the cause.

Reversed, and remanded.