Turner v. McFee, 61 Ala. 468

Turner v. McFee

61 Ala. 468 | Ala. | 1878

MANNING, J.

This was an action of trover by a mortgagee for a horse claimed as a part of the property conveyed by a mox’tgage-deed of one Collins to him. Ramsey, a subscribing witness to the mortgage, which was made five or six years before, testified that he believed the horse in controversy was the same animal described in that instrument as *471an iron grey colt; that he could not state of his own knowledge that it was the same horse; that the horse had no marks or distinct features in the way of color whereby he could recognize him from any other grey horse, but he believed him to be the same iron grey colt or horse described in the mortgage, and was satisfied he was the same. Exception was taken to the refusal of the court to rule out this evidence.

We think the court did not err. A considerable time had probably elapsed since the witness had seen the horse, for which reason he may have been reluctant to be positive in affirming that about which it was possible he might be mistaken. The subject of his testimony, the identity of a horse — was one requiring the exercise of both judgment and memory. If appellant’s counsel distrusted the witness, they ought to have cross-examined him to make it apparent, if the fact was so, that he spoke at random. W e well know that though a horse may have “ no marks, or distinct features in the way of color, whereby a person could recognize him from any other grey horse ” — yet there is a carriage, an action, a style about such animals, by which those of the same color maybe known from one another,though the differences can not be very intelligibly described to a jury. As it is generally easy for a defendant who has such an animal, to show from whom he got him — and from whence he came, such evidence as that given by this witness, ought not to have been ruled out without something more being elicted, to show that he was ignorant of the matter he testified about.

The same observations are applicable to the evidence of Robinson, “ who testified that he knew the grey horse mentioned in the mortgage, and thought it was the same horse now in the possession of defendant.” There being no cross-examination, nothing elicited from, or spoken by the witness showing that he was testifying ignorantly, there was no error in refusing to rule out his testimony.

It is objected as error, that the mortgage was allowed to be introduced as evidence, although it appears therefrom as well as by testimony, to have been executed to secure payment of a debt past due. This, it is contended, shows that there was no consideration to support it; and objection was made to it for that reason. This is not a controversy with a creditor or bona fide purchaser assailing the mortgage as-made to hinder and delay or defraud; but it is contended that being executed as a security for a past-due indebtedness of Collins, the mortgagor, it was not valid against him.

*472The authorities cited do not sustain this proposition. They are cases in which a third person without any new consideration, signed either a note previously made and delivered, or a new note or other security, for the payment of another person’s pre-existing debt. No case can be found in which a man’s own debt has been ruled to be an insufficient consideration between him and his creditor, for a mortgage or other security received by the latter from his debtor.

The failure of the recording officer to have the mortgage when recorded, properly noted in the index he is required to keep, is not to be charged as a fault against the mortgagee. Code of 1876, § 2149 (1539). “This statute relieves a party who has done all that is devolved upon him by the law, from the consequence of the failure of the probatejudge to discharge his duty, or of the imperfect manner in which he discharges it. The conveyance being operative as a record from the time of its delivery to the judge, no subsequent mistake of his could deprive it of the operation thus given it by law.’-’ — Mims v. Mims, 35 Ala. 25.

We find no error in the record, and the judgment is affirmed.