Mitcham v. Schuessler Bros. , 98 Ala. 635 ( 1893 )

COLEMAN, J.

Schuessler Bros, sued out an attachment against one 0. P. Baird, which was levied on the 17th of October, 1891 upon certain personal property. A. "W. Mitcham claimed the property and executed a replevy bond, and an issue was made up to try . the right of property. Evidence was introduced by the plaintiff tending to show the indebtedness of the defendant in attachment, the levy of the attachment and that up to within ten days prior to its levy the' property was in the possession of the defendant in attachment, who claimed the same as his own. The claimant’s title is derived through a mortgage, executed by the defendant on the 25th day of February, 1890 upon the property levied upon under the attachment. The execution and consideration of the mortgage was duly proven, and the mortgage admitted in evidence. The mortgage debt became due Oct. 1st, 1890 and was credited with $81.94 Oct. 18th, 1890, and endorsed as follows: “It is agreed that the payment of the balance on this mortgage be extended to Oct. 1st, 1891.” There was evidence tending to show that the extension was granted, because of the inability of the mortgagor to pay the debt when it fell due. It was proven that G. T. Mitcham, husband of claimant, was her agent, and by virtue of the mortgage, with the mortgagor’s consent, took possession of the property on the 6th of Oct. 1891, and had it in possession as the agent of the claimant at the time of the levy of the attachment.

There was no error in excluding the conversation between G. T. Mitcham and the. defendant in attachment, plaintiff not being present at the time, and having no knowledge of it. The court erred in admitting the testimony of the witness Cooper. Admissions of the husband made in the absence of the wife, are not binding on her, and this is especially "applicable to his declarations as an agent as to any past transaction, or his admissions which are not explanatory of some contemporaneous act or transaction, within the scope of his authority, or made while in the execution of his agency.—Tanner v. L. & N. R. R. Co., 60 Ala. 621; A. G. S. R. R. Co. v. Hawk, 72 Ala. 112; A. G. S. R. R. Co. v. Hill, 76 Ala. 303; Belmont Coal & R. R. Co. v. Smith, 74 Ala. 206; Bynum v. So. Pump Co., 63 Ala. 462. The admissions of the husband testified to by the witness Cooper as to the satisfaction of the mortgage debt, are not within the rule, and should have been excluded. We think the first charge given for the plaintiff, when considered with the evidence, was free from error. The evidence satisfactorily showed, that the property belonged to the defendant, subject to the rights of the mortgagee, and if the debt secured by the mortgage, through which claimant claimed title, had been paid, the jury were properly instructed to find the issue for the plaintiff. The second charge given for the plaintiff is somewhat involved and as a whole not strictly correct. Indulgence for an unreasonable time after the law day of a mortgage is a circumstance, which the jury may consider in connection with other facts, in determining the bona fides of a mortgage in its inception, or as to whether the secured debt has been satisfied.—Beall v. Williamson, 14 Ala. 55; Bearing v. Watkins, 16 Ala. 20; P. & M. Bank v. Willis, 5 Ala. 770. But if the mortgage is bona fide and the debt secured, has not been paid, no indulgence to the mortgagor, although the effect of such indulgence be to protect the debtor in the possession and enjoyment of the property will affect the validity of the mortgage security. In such cases, the only remedy of the mortgagor is to redeem, and his creditors can acquire no rights.—Ware v. Hamilton Brown Shoe Co., 92 Ala. 145; Pratt v. Nixon, 91 Ala. 192; Kelly v. Longshore, 78 Ala. 204; Bingham v. Vandegrift, 93 Ala. 283.

Eeversed and remanded.