Lewis v. Simon & Co. , 101 Ala. 546 ( 1893 )

COLEMAN, J.

Suit in detinue by appellees to recover personal property. The defendant pleaded, 1st, the general issue; 2d, want of consideration; and, 4th, a special plea. There was a demurrer to the 4th plea, which being overruled, the plaintiff replied'to the 2d and 4th pleas.

In the 4th plea of the defendant, it is averred that plaintiffs’title was derived from a mortgage executed by defendant to plaintiffs to secure a note for five hundred dollars. The beginning of the plea is, “Fraud in the execution of the note and mortgage,’’ &c. It continues then to state the facts of the defense. These facts show that defendant was fully advised of the contents of the note and mortgage and their legal effect before and at the time the same were executed. Accurately speaking, the plea shows by its statement of the facts, that there was no fraud “In the execution of the note and mortgage.” — Smith v. Kirkland, 81 Ala. 345, 1 So. Rep. 276; Foster v. Johnson, 70 Ala. 249; Davis v. Snider, Ib. 315; Johnson v. Cook, 73 Ala. 537; Pacific Guano Co. v. Anglin, 82 Ala. 492, 1 So. Rep. 852; Morris v. Harvey, 4 Ala. 300; Kelly v. Mobile Building Asso., 64 Ala. 503. The facts stated in the plea, if true, show that the note and mortgage were executed without consideration.

There was no demurrer either to the second or fourth plea, raising the question as to whether in a suit in detinue to recover personal property, the plaintiffs’ title resting in a mortgage,’want or failure of consideration is an available defense. The replication to these two pleas was merely a more specific statement of facts upon which plaintiffs relied to recover, and was in legal effect a mere joinder in issue. — Herring v. Skaggs, 73 Ala. 446; 1 Chitty on Pleading, 624. Treated purely as a replication, it may have been defective.— Winter v. Mobile Sav. Bank, 54 Ala. 172; Barbour & Son v. Washington Fire Ins. Co., 60 Ala. 433.

There was evidence tending to support plaintiffs’ case, and there was evidence tending to support the pleas of the defendant. There was no reversible error in the two charges given at the request of the plaintiffs. Each contained correct propositions of law, although each asserted a proposition of law which might be regarded as abstract. There was no proper plea which set up as a defense“fraud in the execution of the mortgage,” and no competent evidence to support a plea of that character.

We think the court erred in refusing the second charge requested by the defendant. If the jury believed the evidence of the defendant, his pleas of failure of consideration were sustained. He had testified that the note and mortgage were executed upon a promise to loan him five hundred dollars, and that plaintiffs had refused to make the loan, and that defendant had received nothing in consideration for the note and mortgage. In view of this evidence, the charge should have been given. We have said issue was joined on the pleas, and the defendant had the right to a trial of the issues without reference to their sufficiency. — Reeves v. Skipper, 94 Ala. 407, 10 So. Rep. 309; M. & C. R. R. Co. v. Graham, Ib. 545, 10 So. Rep. 283, and authorities cited.

Quere? When plaintiffs’ title in a suit in detinue depends upon a mortgage, can its validity be tried by showing that the mortgagor does not owe the debt, upon the ground of the failure or want of consideration? By act approved January 27th, 1883, (Acts of 1882-83, p. 31), it was provided that where the title of the plaintiff in a detinue suit was derived from a mortgage, the defendant might plead any defense which could have been pleaded to an action to recover the debt. Section 2720 of the Code of 1886 was substituted in the place of the act. The statute as codified is not so clear as the act of the legislature supra; but the Code provides that upon the suggestion of the defendant, the jury may be required “to ascertain the amount of the mortgage debt, and such ascertainment must be entered on the record of the judgment, and the court must order that if the debt so ascertained, interest and cost, be paid within thirty days,-no execution or other process shall issue on the judgment; ”&c. By act approved February 21, 1893, (Acts of 1892-93, p. 1127), section 2720 of the Code of 1886 was amended so that the defendant could plead “to the consideration of the instrument relied upon.” The rule as to suits in ejectment under a mortgage, and for the recovery of chattels is not the same. — Slaughter v. Swift, 67 Ala. 494; Jackson v. Scott, Ib. 99; Ellington v. Charleston, 51 Ala. 166; Burns v. Campbell, 71 Ala. 271.

Reversed and remanded.