McDaniel v. Sullivan , 1905 Ala. LEXIS 44 ( 1905 )

ANDERSON, J.

Section 1478 of the Code of 1896 is as follows: “The defendant in any action under the provisions of this chapter brought by a mortgagee or by a vendor in a contract of conditional sale, or by their assignee, in addition'-^ any defense appropriate to the action of detinue, may plead any matter of defense that lie might have pleaded if the action had been on the debt, except the statute of limitations;” and applies to all actions of detinue.

The instrument introduced was a mortgage and the defendant had the right to introduce evidence in reference to the consideration thereof.

Under section 1478, the defense, as set up' by pleas 4, 5, 6 and 7, ivas available to the defendant, but not under the general issue, and the court below erred in sustaining demurrers to pleas 4 ánd 5.

The demurrers to pleas 6 and 7 were properly sustained, as they sought a judgment for the excess. While section 1478 permits the matters therein set up to be used to defeat the action, we do not understand it to give the defendant any right to recover a judgment for an excess. Detinue is an action to recover property and the defendant can only show facts that would destroy title and, defeat recovery, but cannot recover a judgment against the plaintiff.

The instrument provided for “Holding, recovering and selling said property,” as well as for attorneys’ fees, and the defendant was only entitled to be credited with the net proceeds of the sale under the statutory suggestion, as provided by section 1477 of the Code of 1896.

The court erred in including the second instrument in ascertaining the amount due. It was a separate and distinct instrument, not then clue and was in no way connected with the suit. The statute clearly contemplates an ascertainment of the amount due upon the mortgage or conditional sale upon which the action is based, not a debt, not due, upon a separate and distinct instrument.

The evidence fails to disclose what were the proceeds of the sale of the two horses, but it is evident the trial judge included the amount due upon the second instrument ; and judging from the amount found to be due by the defendant as disclosed by the judgment, with the amount so included excluded, the first note was paid, and rt snch was the case, there should have been a judgment for ‘the defendant.

The judgment of the city court is reversed and the cause remanded.

Reversed and remanded.

McClellan, C. J., Tyson and Simpson, JJ., concurring.