Slaughter v. Doe ex dem. Swift, Murphy & Co. , 67 Ala. 494 ( 1880 )

STONE, J.

— The declaration in the present action counts on two demises; one by Charles J. Swift, and the other by George P. Swift, senior, George P. Swift, junior, and Samuel G. Murphy, styling themselves partners using the firm name of Swift, Murphy & Co. At law, a 'title conveyed to a, partnership in its firm name, vests in the several partners as tenants in common.— Caldwell v. Parmer, 56 Ala. 405. Testimony was offered by plaintiff, tending to prove title under the latter, but inapplicable to the first named demise. Objection by 'defendant to the admissibility of the evidence under the first demise. This was not the proper way to raise the question. The testimony — mortgage to Swift, Murphy & Co.' — was clearly admissible under the pleadings; and if it became material to limit the operation of the testimony to a part, less than the whole of the issues, that was a proper subject for a charge, explaining to the jury the extent to which it was pertinent.— Goldsmith v. Picard, 27 Ala. 142; Cook v. Parham, 24 Ala. 21; 1 Brick. Dig. 810, §| 98, 99.

The testimony of Smith, rejected by the court at the instance of plaintiff, was offered to prove that nothing was due on the mortgage, the foundation of the suit. If this defense could be made at law, there was no issue formed to justify its introduction. The record contains no special plea, setting up that matter in avoidance. Our statute (Code of 1876, § 2988) has defined the extent to which the plea of not guilty cau be made available. Its language is : “In all suits where the defendant relies on a denial of the cause of action as set forth by the plaintiff, he may plead the general issue ; and in all other cases, the defendant must briefly plead specially the matter of defense, and may, by leave of the court, plead more pleas than one.” The defense offered was not a denial of the cause of action as set forth — the making of the note and mortgage, and their maturity. It proposed to go farther, and avoid their effect by proving payment, or something equivalent thereto. — Petty v. Dill, 53 Ala. 641; Trammell v. Hudson, 56 Ala. 235; Folkes v. Collier, at this term.

There are many decisions of other States, holding that payment of the debt secured, before action brought, is a good defense to an action of ejectment brought by the mortgagee. Some, if.not all, of these decisions are influenced, more or less, by statutes defining the nature and extent of recovery in such actions. — Jackson, v. Stackhouse, 1 Con. 122; Gray v. Jenks, 3 Mason, 520; Gray v. Wass, 1 Green. 257; Vase v. Handy, 2 Greenl. 322; Burton v. Austin, 4 Ver. 105; Petty v. Clarke, 5 Pet. 481. And the following text-writers assert the same doctrine : 2 Greenl. Ev. § 330; 1 Jones on Mort. § 719; 3 Wait’s Act. & Def. 66; 4 Ib. 545. See, also, Breckenridge v. Armsby, 1 J. J. Mar. 236; S. C. 19 Amer. Dec. 71. This court, however,, has adopted a different rule, and holds that, when the mortgage is silent as to the time or event on which the mortgagee may take possession ; or, when the time is expressed in the mortgage, during which the mortgagor may remain in possession, and that time has passed ; then, as against the mortgagor, and those claiming in his right, the mortgagee has the legal title and right to possession, and may maintain ejectment; and the payment of the mortgage debt is not a good defense to such action, although it will defeat an action for chattels conveyed by mortgage. — Deshazo v. Lewis, 5 Stew. & Por. 91; Lewis v. Canfield, 2 Ala. 555; Morrison v. Judge, 14 Ala. 182; Harrison v. Hicks, 1 Par. 423; Barker v. Bell, 37 Ala. 354; Goodman v. Pledger, 14 Ala. 114; Shirer v. Johnson, 62 Ala. 37; Toomer v. Randolph, 60 Ala. 356; Welch v. Phillips, 54 Ala. 309; Woodward v. Parsons, 59 Ala. 625; Denhy v. Mellgrew, 58 Ala. 147; Coyle v. Wilkins, 57 Ala. 108; Dryer v. Lewis, 57 Ala. 551; Baldwin v. Hatchett, 56 Ala. 461; 2 Wash. Real Prop. 95.

The following authorities bear on the question of usury, when relied on in defense of an action of ejectment by a mortgagee. Chandler v. Morton, 5 Greenl. 374; Richardson v. Field, 6 Ib. 35; Holton v. Button, 4 Com. 436.

And it seems to be settled that, as against all persons except the mortgagee, and those claiming in his right, the legal title is in the mortgagor, until foreclosure.- — Knox v. Easton, 38 Ala. 345, 356; Denby v. Mellgrew, 58 Ala. 147; 3 Wait’s Act. & Def. 66; Tyler on Eject. 56; Hitchcock v. Harrington, 6 Johns. 290.

Affirmed.