Hooper v. Birchfield , 115 Ala. 226 ( 1896 )

McCLELLAN, J.

Under section 2720 of the Code as amended by the act of 1893 — Acts, 1892-93, p. 1127— any matter of defense which would be available against an action on the mortgage debt maybe availed of against an action by the mortgagee or his assignee for the recovery of the property covered by the mortgage, either to show payment or other satisfaction of the mortgage debt, whereby the suit would be defeated, or to reduce the amount of such debt as claimed, or expressed in the mortgage, with a view to the ascertainment by the jury of the balance really due. If the purpose is to show that there is no debt, the facts relied on to this end should be set forth by special pleas ; and, in view of the object contemplated by the statute, that, if it be made to appear no debt exists the title conveyed by the mortgage is divested out of the mortgagee plaintiff, any state of facts which leads to and enforces that conclusion may be averred in a single plea. As, for example, where there was no consideration for a part of the mortgage debt, as to other part it is made up of usury, and the balance remaining, after reducing the nominal debt to the extent of the usury and that part of it for which a consideration is wanting, has been paid: all these facts may be, indeed, should be, laid in one plea, for each of them is an essential constituent in si Lch case of the defense the statute provides for, and all of them together are necessary thereto. While usury in the mortgage debt, not equal-ling the amount thereof, partial failure of consideration and part payment are severally defenses pro tardo against a suit for the recovery of the money claimed to be due on the debt, neither of these facts taken separately can bar an action in detinue for the property, because so long as any part of the debt exists the plaintiff would be entitled to recover, It was to this latter sort of case this court had reference, when it said by Haralson, J., in Powell v. Crawford, (110 Ala. 298) : “Usury in a debt secured by a mortgage, does not affect the validity of the mortgage, any part of the debt remaining unpaid, and is not available at law to defeat the action founded on the mortgage.” The cases cited to the foregoing passage in the opinion were decided before the statute we are considering was enacted, but were apt in the connection used to support the proposition that even since the statute usury, insufficient in amount to totally extinguish the mortgage debt, is no defense to the action of detinue for the mortgaged property.

On the other hand, where the question arises upon defendant’s suggestion requiring that the jury ascertain the amount of the mortgage debt, and is, not whether any debt exists but, as to the amount of the admitted indebtedness, any fact going to a reduction of the debt named in the instrument or claimed to have been incurred thereunder, such as partial want or failure of consideration, partial payment, usury, set-off or recoupment in part, would be proper for the consideration of the jury; and it would seem that any and all of these defenses pro tanto to an action on the obligation to pay money which the mortgage purports to secure could be brought forward in the action to recover the mortgaged property under the defendant’s statutory suggestion— his requirement “that the jury ascertain the amount of the mortgage debt” — without being specially pleaded in any way; for, while the statute clearly contemplates that all matters of defense against the obligation to pay money may be availed of to show satisfaction of the mortgage and thus to destroy plaintiff’s claim of title, or to reduce the debt upon defendant’s suggestion as to an ascertainment of amount, it as clearly provides for such ascertainment upon this mere suggestion without more. This is not to be commended as the perfection of pleading, but so the law is written. Doubtless trial courts will exercise in respect of it a sound discretion as to continuances and the like to prevent hardships to idaintiffs incident to being called upon without previous warning or notice to answer defensive matter which in an action on the money obligation would have to be specially pleaded.

■ In the foregoing observations we have assumed that the last clause of section 2720 as amended reads as follows : “To show title the defendant may.plead payment, accord and satisfaction, or otherwise, as he could to a note or. other obligation made for the payment of money.” A like assumption has been indulged by this court whenever this statute has come under review. Powell v. Crawford, 110 Ala. 294; Lewis v. Simon, 101 Ala. 547. In point of fact the statute as enrolled • and as published employs the word plaintiff instead of 'the word defendant in the provision referred to. It is so entirely obvious, however, that the use of the word “plaintiff” is the result of a clerical misprision and that defendant was intended, that the error corrects itself and that the assumption upon which we have been proceeding is fully authorized and justified.

The application of our views of 'the law to the present case leads us to the conclusion that the circuit court erred in striking out defendant’s original second plea, on the ground that it set up usury, partial want of consideration and payment in part. This error forced- the defendant to set up these several matters in separate pleas. As none of these separate pleas in and of themselves respectively showed a defense to the action, since neither the usury, nor the payments made nor that part'of the nominal debt for which there was no consideration, independently considered, showed' full satisfaction of the mortgage debt, the demurrers to them severally, for that they were pleaded in bar and failed to answer the whole case, should, abstractly speaking, have been sustained. But in submitting to the jury upon these several pleas the question whether the real mortgage debt had been satisfied, the court did no more than it should have done under the original second plea, and hence no more than the defendant had a right to demand; and the error committed against .the appellants by overruling their demurrer to the amended pleas is so counterbalanced, so to say, by the error committed at their instance and in their favor by sustaining their objections to the original plea, and the error against them resulted so directly from the error induced by them and to their advantage, that they cannot now be heard to complain.

The judgment of the circuit court is affirmed.