85 Ala. 240 | Ala. | 1887
In this suit, which is a statutory action for the recovery of personal property brought by appellees, the defendant suggested that the plaintiffs derived title from a mortgage, and put in issue the amount due thereon. No other plea was filed, nor defense interposed. The statute in force at the time the suit was commenced provided: “That in suits where the title of the plaintiff is derived from a mortgage, the defendant may put in issue the amount due upon the mortgage, and may also plead and give in evidence any matter that might have been pleaded and given in evidence had such action been to recover the debt incurred by such mortgage; and should the jury find for the plaintiffs, then upon payment of such amount, besides costs, within thirty days thereafter, the defendant shall have the title and possession of the property.” — Acts 1882-83, p. 31. The suggestion was tantamount to an admission of record, that plaintiffs had title to the property, unless it had been divested by payment of the mortgage debt, leaving only the issue, whether any, and what amount, was due on the mortgage. The purpose of the statute is to exempt the mortgagor from a compulsory restoration of the property, by paying the amount which may be found due on the mortgage, and the costs of suit.
During the pendency of the action, the parties, by agreement in writing, but without an’order of court, submitted the
Affirmed.