Wheless v. Rhodes , 70 Ala. 419 ( 1881 )

STONE, J.

In this case, certain payments were shown to have been made by Rhodes to Wheless, in February, 1874. Wheless testified, that Rhodes had rented lands from him as the agent of Hollingsworth, and had cultivated them during the year 1873. Pie further testified, that part of the money so paid to him was paid and applied in liquidation of Rhodes’ indebtedness to Hollingsworth for said rent. There had been other indebtedness from Rhodes to Wheless, and the contention was, on which of these claims the payment should be applied. If applied to the claim for rent, the implications are, that this would leave an unpaid balance due on the mortgage from Rhodes to Wheless. The plaintiff, Rhodes, was allowed to testify, against the objection and exception of the defendant, “ that he did not intend to pay the rent of the Hollingsworth place, but intended to have the amount appropriated by the defendant as a payment of the mortgage to Wheless.” In this, the Circuit Court erred. In a contest such as this, which includes inquiry into the character, intent, motive, and purpose of the parties to the suit, neither party will be allowed to testify as a witness to any secret or uncommunicated intention or purpose, he may have had when he did the act. Facts may be laid before the jury, and verbal or written intercommunications are facts. Declarations made, attending acts, and explanatory of them, are facts. But uncommunicated intentions are not the subject of proof. The jury must ascertain these from the facts and circumstances.—Mobile Life Ins. Co. v. Walker, 58 Ala. 290; Sternau v. Marks, Ib. 608; Herring v. Skaggs, 62 Ala. 180.

The Circuit Court did not err in receiving evidence of the usury. It tended to show the actual debt was less than the papers imported. The mortgage being of chattels, if the mortgage debt was paid, the mortgagee’s title was at an end. Where there is no debt, there is no mortgage.—Harrison v. Hicks, 1 Por. 423; Morrison v. Judge, 14 Ala. 182; Geron, v. Geron, 15 Ala. 558. This rule does not obtain, in courts of law, as to lands.

The charges asked are not shown to have been in writing, and we can not consider them.

Reversed and remanded.