Torbert v. McFarland

55 So. 311 | Ala. | 1911

Lead Opinion

ANDERSON, J.

Section 3789 of the Code of 1907 provides that, in actions of detinue by a mortgagee, or his assignee, against a mortgagor or one holding under him, or by a vendor who has made a conditional sale reserving title until the entire purchase money is paid, or his assignee, against his vendee or one holdng under him, the defendant may, upon suggestion, require that the jury ascertain the amount of the mortgage debt, etc. Section 3791 provides that, when the action is brought by the mortgagee or conditional vendor or assigns, the defendant may plead any matter of defense, including usury, that he might have pleaded if the action had been on the debt, except the statute of limitations. As an original proposition, the writer would be of the opinion that section 3789 was intended merely to authorize redemption in a court of law, by permitting the defendant to pay up what was due and retain the property, but in order to reduce the amount the matters relied on should be specially pleaded as provided by section 3791. These statutes, however, have received a different construction in the case of Hooper v. Birchfield, 115 Ala. 226, 22 South. 68, and have been readopted without change, in this particular, and the interpretation given is established law, which must control in the consideration of this case. It appears that the court held, in this Hooper Case, supra,, that, if the purpose is to show no debt due, “the facts relied on to this end should be set forth by special pleas.” Says the court, however, in discussing the statutory suggestion as provided by section 2789 of the present Code: “On the other hand, where the question arises upon defendant’s suggestion, requiring that the jury ascertain the amount of the mortgage debt, and is, not whether any debt exists, but as to the amount of the admitted indebtedness, any fact going to a, reduction of the debt named in the instrument or claimed to have been incurred thereunder, such as partial payment, usury, set-off, or recoupment in part, would be proper for the consideration of the jury; and it would seem that any and all of these defenses pro tanto to an action on the obligation .to pay money which the mortgage purports to secure could be brought forward in the action to recover the mortgaged property under the defendant’s statutory suggestion — his requirement That the jury ascertain the amount of the mortgage debt’ — without being specially pleaded in any way; for, while the statute clearly contemplates that all matters of defense against the obligation to pay money may be availed of to show satisfaction of the mortgage, and thus to destroy plaintiff’s claim of title, or to reduce the debt upon defendant’s suggestion as to an ascertainment of amount, it as clearly provides for such ascertainment upon this mere suggestion, without more. This is not to be commended as the perfection of pleading, hut so the law is written. Doubtless trial courts will exercise in respect of it a sound discretion as to continuances and the like, to prevent hardships to plaintiffs incident to being called upon without previous warning, or notice to answer defensive matter which in an action on the money obligation would have to be specially pleaded.” It must be observed from the foregoing, that this defendant had the right, under his statutory suggestion, to set forth all matters that would legally reduce the mortgage debt and which could have been pleaded in defense of an action on said debt.

It seems that the sheriff took the property under a writ of seizure. It was therefore his duty, under section 3780, to hold the property subject to the defendant’s right to have it restored upon giving bond within five days. If the defendant failed to give said bond, the sheriff was authorized to deliver it to the plaintiff, if he gave bond within the succeeding five days; and if the plaintiff failed to give said bond, the property should have been restored to the defendant, and if the sheriff-failed to restore the property as required, he would be liable to the defendant, upon his official bond for damages, and regardless of the final outcome of the detinue suit. — Burton v. Cefalu, 165 Ala. 362, 51 South. 721; Elrod v. Hamner, 120 Ala. 463, 24 South. 882, 74 Am. St. Rep. 43, and cases cited.

In the meantime the sheriff holds the property as bailor, and if it is lost, injured, or destroyed, through his act or neglect, he is liable therefor; and if he improperly turned it over to the plaintiff, and the plaintiff used it, or permitted or caused any waste or diminution in the value of same, he would he liable as a joint tortfeasor with the sheriff, and the defendant could sue for the tort, or waive the tort and sue on contract, at least for so much of the property as the plaintiff used or consumed.

Section 5858 of the Code of 1907 authorizes demands of this character to be set off, as they are not sounding in damages merely. — Foster v. Bush, 104 Ala. 662, 16 South. 625. And, as heretofore stated, under the Hooper Case, supra, the defendant could avail himself of this claim, under the statutory suggestion and without a special plea of set-off. The trial court did not err in permitting proof of the loss, use, or destruction of the property taken from the defendant, which may have accrued while in the custody or control of the plaintiff, or in giving charge 2, requested by the defendant.

Nor was there any error in excluding the testimony of Lewis as to how he copied the book, as it did not explain any discrepancy, if one existed. It does not disclose that a mistake was made in making up the account, but shows that he correctly copied from the book, and would tend to show the discrepancy was due to a subsequent change of the book.

Charge 1, given fpr the defendant, may have been misleading, for pretermitting the fact that some or most of the property had been restored to the defendant, but was subject to explanation by a countercharge from the plaintiff, and the trial court will not be reversed for giving same.

The judgment of the circuit court is affirmed.

Affirmed.

Dowdell, C. J., and Sayre and .Somerville, JJ., concur.

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Rehearing

On Rehearing.

ANDERSON, J.-

Counsel for appellant insists that the statutory suggestion does not contemplate or authorize an entire extinguishment of the mortgage debt, but only a reduction of same; that is the suggestion does not deny that something was due on the mortgage. It may be that, under the suggestion alone, the defendant cannot question the once existence of the mortgage debt; but, as we held in the Hooper Case, supra, the defendant conld show, under the statutory suggestion, any fact going to a reduction of the debt named, such as partial failure of consideration, partial payment, usury, set-off in part, or recoupment in part. If the set-off should be equal to or exceed the mortgage debt, or if it be less, but, together with some other item of credit permissible under the suggestion, they be sufficient to wipe out the mortgage debt, we know of no reason why the jury could not so find, and return a verdict for the defendant, notwithstanding the once existence of a debt was not or could not be questioned, except by an appropriate plea..

It is next insisted that the evidence objected to by the appellant, the conversion or partial conversion of the property, established a defense arising after 'the commencement of the suit, and could only be shown under a plea of puis darrein continuance, and not under the statutory suggestion, citing Feagin v. Pearson, 42 Ala. 332. Whether this case would apply to the statutory suggestion, enacted many years after the rendition of same, we need not decide; for, if it does, it would not be available to the appellant upon this application for rehearing. In the first place, the only objections to the evidence, going to establish the set-off growing out of the conversion, nowhere suggest that it was matter arising after the suit was brought. Nor does appellant’s original brief even hint at this point. It questions ■ the evidence, because it went to establish a tort, or set-off, and claims that said set-off should have been specially pleaded and could not be shown under the suggestion. Indeed, the original brief says: “The failure of the sheriff to deliver the property was a tort, and, if the plaintiff was in any way connected with the tort, this could only be raised by a plea of set-off, which defendant had a right to plead.” (Italics ours.) There is not the slightest suggestion that the matter arose after the commencement of the suit and was only available under a plea of puis darrein continuance, and this court cannot go out of its way to reverse cases upon points not made or insisted upon by appellants in their original argument or brief.

The application for rehearing must be overruled.