Watson v. Herring , 115 Ala. 271 ( 1896 )

McCLELLAN, J.

This is a statutory action for the recovery of land prosecuted by Herring against Martha Watson and J. J. Watson. Plaintiff claimed title under a mortgage which was signed by the defendants. It appears from the abstract that “this mortgage is not witnessed by any person, nor is it probated by any officer authorized to take acknowledgments, nor purported to be probated by any officer.” The instrument without attestation or acknowledgment was inoperative to vest title to the land in the plaintiff; and the affirmative charge requested by the defendant should have been given.

It was stated at the bar, however, and not controverted, that as matter of fact the mortgage bore the necessary certificate of acknowledgment, but that such certificate was inadvertently omitted in copying the instrument into the bill of exceptions. Hence, with a view to another trial, we will refer to some of the other points presented by the appeal.

It is sufficient justification for the striking out Of defendant’s special plea of usury, that it was filed after the time for pleading had passed and without leave of court.

Moreover, usury in the secured debt cannot be pleaded at all in bar of an action to recover land, nor given in evidence under defendant’s suggestion requiring the jury to ascertain the amount of the mortgage debt: section 2707 of the Code has relation to payment in whole or in part of the mortgage debt.—McKinnon v. Lessley, 89 Ala. 625 ; Lampley v. Knox, 92 Ala. 625.

The issue of indebtedness vel non, and the inquiry as to the amount of the mortgage debt, which are authorized by section 2707 of the Code, are confined to the mortgage debt itself. The general state or balance of indebtedness between the parties is not within either. Recovery cannot be defeated by showing that although there is a balance due under the mortgage, plaintiff owes defendant on other accounts enough to liquidate it, nor can such outside matters be taken into account in ascertaining the amount of the mortgage debt. Set-off, therefore, can neither be pleaded in bar of the action nor brought forward under defendant’s suggestion in determining the' unpaid balance. (A different rule would prevail, it seems, in actions for the recovery of personal property under section 2707 of the Code. Powell v. Crawford, 110 Ala. 294.) Pleas 2, 3' and 4 were bad, and the demurrers to them should have been sustained. The 5th 'plea was also bad. On the facts averred therein, defendant would be entitled to have the value of the property which it alleges plaintiff had taken under the mortgage deducted from the mortgage debt under his suggestion for the ascertainment of the balance of such debt, but as a plea in bar of the action these facts, not showing full payment of the mortgage debt, are wholly unavailing. If, as averred in the plaintiff’s replication to this plea, plaintiff took this property under another claim having no connection with this mortgage, the value of it would constitute an independent claim of defendant against him which could not be brought forward in the present action at all, though, of course, if the action were for the recovery of the mortgage debt, and not for the recovery of the land conveyed by the mortgage, such claim might be set off against the plaintiff.

As to the liability of Mrs. Watson for the advances made by Herring : She contracted in writing for farming supplies, &c. to be advanced to her by him, the mortgage itself constituting the written contract. It may be that she did not receive any advances under this contract, but that, as testified by herself and Watson, they were purchased and received by the latter alone. If the jury so found, the value of the advances should not be debited to her in ascertaining the amount of the mortgage debt. On the other hand, it was open to the jury to conclude from the facts that she contracted for such advances, that she owned the land upon which farming operations were carried on, and that she now claims the crops grown thereon the year during which the advances were made, that she, and not her husband, received these supplies, their evidence to the contrary notwithstanding; and so finding she should be debited therefor under the mortgage. The fact that her husband came for the supplies which were furnished, and in person received them from Herring, is not necessarily controlling : this he might well have done as her agent. The charges asked by the defendant would have encroached upon the rights of the jury in respect of this issue, and were properly refused.

For reasons already adverted to, charges 2 and 5 requested by defendant are incorrect statements of the law. The general affirmative charge was properly refused to defendant.

Reversed and remanded.