McCart v. Smith , 16 Ala. App. 387 ( 1918 )

The question as to whether the transfer of the mortgage by King to the defendant was in good faith and with the intention to divest the legal title out of King and invest it in Williams, or whether it was merely temporary and colorable, for the sole purpose of allowing defendant to use the paper in defending the suit, the paper to be transferred back to King after the termination of the suit, was properly submitted to the jury.

While matters of defense occurring after suit is brought are subjects of special pleas and are not admissible under the general issue, in the face of appropriate objection (Karter v. Fields, 130 Ala. 430, 30 So. 504), the only objection urged against the transfer of the mortgages from King to defendant was that:

"The transfer was a fictitious transfer, and wasn't a bona fide transfer, and only made for the purpose of assisting the defendant in the suit, and was, without any valuable, consideration."

This specific objection was properly overruled, the question presented being one for the jury, and was a waiver of all other objections. Railroad Co. v. Bailey, 112 Ala. 167, 20 So. 313; Sharp v. Hall, 86 Ala. 110, 5 So. 497, 11 Am. St. Rep. 28.

In view of the question as to the bona fides of the transfer of the mortgages from King to the defendant, the court erred in sustaining the defendant's objections to the questions propounded to the defendant on cross-examination, eliciting testimony as to the amount of the consideration paid for the alleged transfer. Where the question of fraud is involved in the transfer of property, the amount of the consideration paid for such transfer is always material. Jones on Ev. § 470. While much is left to the enlightened discretion of the trial court as to the extent of cross-examination as to collateral or immaterial matters, this rule does not extend to facts that are material and tend to shed light on the questions at issue. Jones on Ev. §§ 829, 842, 843; Dickey v. State, 197 Ala. 610,73 So. 72; Id., 15 Ala. App. 135, 72 So. 608.

If the transfer was merely colorable and by arrangement between the parties the mortgages were to be retransferred to King after the trial, the transfer was in its nature champertous and void. 2 R. C. L. 269-279.

The issues presented by the defendant's plea of res adjudicata and the special replication thereto was also properly submitted to the jury. If the order of nonsuit was not moved for until after the justice had pronounced a final judgment and adjourned his court, the justice was without authority to set aside the judgment in favor of the defendant and enter a nonsuit.

For the error pointed out, the judgment is reversed and annulled.

Reversed and remanded.