Tennessee Valley Bank v. Kimbrough , 21 Ala. App. 697 ( 1925 )

RICE, J.

A statement of the case made by the pleadings and the evidence would not be helpful. The suit was brought by the plaintiff (appellant) bank against the defendant (appellee), and involved the title to certain items of personal property originally belonging to one Runager. The principal insistence of error here made by appellant, or, at any rate, the insistence of error in the only ruling which might cause the case to be reversed is on account of the action of the trial court in refusing to give at plaintiff’s request the general affirmative charge in its favor. In the view we take of the case, neither this action of the court, nor any other of which .complaint is made, can avail the appellant. A careful study of the record reveals that the jury were authorized to find — certainly not precluded from finding — that subsequent to the time of the execution of what we will call the first Runager mortgage to McCullough, and after the execution of the Austin mortgage, attested by McCullough, finder which defendant, appellee, holds and claims, the note from McCullough to the appellant, for which the said first Runager mortgage was pledged as collateral, was paid in full. This being true, and the burden being on appellant to show title in itself, we are of the opinion that the trial court might well have given the general affirmative charge in favor of the appellee. Adopting, though, perhaps the safer course, the trial court, under a very full and fair oral charge, submitted all the litigated questions, which resolved themselves into ones of fact, to the jury. There being no prejudicial error in the record, the judgment is affirmed.