Beyer & Son v. Fields , 134 Ala. 236 ( 1901 )

SHARPE, J.

Tlie decision in Belser v. Youngblood, 103 Ala. 545, shows the trial court was in error in rejecting defendants’ offer to prove that Kinney held a first mortgage on the cotton in question and that they bought, the cotton from the mortgagor after she had carried it to Kinney and had been directed by him to sell it and bring him the money. Kinney if he had such a mortgage was entitled to receive the cotton, and with the mortgagor’s consent to dispose of it by private sale, subject stlo accountability for so much as its value exceeded the sum secured by his mortgage; and evidence of the kind defendants sought to. introduce was relevant as tending to show the cotton Avas in effect delivered to Kinney and that Itihe mortgagor in selling to them was acting rightfully by authority of and as agent for Kinney. Such is the theory upon Avhich in Belser v. Youngbood, supra, a case like this in principle, aaus distinguished from Keith v. Ham 89 Ala. 590.

By first introducing oral evidence of the existence and payment of plaintiff’s judgment and execution against the mortgagor, defendants opened the Avay for the opposite party to. prove, the amount of the judgment and execution by evidence of the same grade, and by the same course they Avere precluded to question the court’s jurisdiction to render the judgment, even if it would other Avise have been subject to- collateral attack.

Assignment of error number 1, not being referred to in briefs, is presumably Avaived.

Reversed and remanded.