107 So. 832 | Ala. | 1926
The chief and decisive issue of fact in this case is whether or not the complainant Benson inserted in the mortgage executed to him by the respondent, Shook, the words, "payable annually," immediately following the words, "with interest from date," with the knowledge and consent of Shook.
We have carefully considered all of the evidence in the record. The only testimony relating directly to this question is that of the two parties named — the one positively affirming that the words were so inserted, and the other as positively denying it. But it is clearly shown without dispute, and, indeed, it is admitted by him, that Shook, in making payment of the two notes which first fell due, twice in consecutive years, paid, along with the principal sum due, the yearly interest on the entire indebtedness. This he appears to have done spontaneously and without question.
It is, we think, inconceivable that he would have made these payments of interest unless he knew or believed that his contract imposed upon him the obligation to do so. So strong, indeed, is this implication that, regardless of who carried the burden of proof, we are reasonably satisfied that the words in question were inserted in the mortgage with the knowledge and consent of the respondent, Shook; and, not affecting the status of the title conveyed, the alteration was effective without a reacknowledgment or reattestation of the instrument. Winslow v. Jones, 7 So. 262,
As to respondent's attempted impeachment of the record of the mortgage by showing that the disputed words were inserted in the record long after the actual recordation of the mortgage, and as late as the inception of this litigation, the burden of proof was upon respondent, and the evidence is wholly insufficient to establish that contention.
Complainant is entitled to recover the amounts properly paid by him for taxes due on the property from the mortgagor, and the reference properly included an order for the ascertainment of the amount due in that behalf.
We hold, therefore, that the decree of the circuit court was in all things correct, and it will be affirmed.
Affirmed.
GARDNER, THOMAS, and MILLER, JJ., concur.