Johnson v. First Nat. Bank of Andalusia , 205 Ala. 420 ( 1921 )

ANDERSON, C. J.

This is an action of ejectment, and the only controverted ques tions are whether or not a certain mortgage given hy the appellants December 8,1909, for $950, was intended to be for $350 instead of $950, and the payment vel non of same before the sale of the land thereunder on the 3d day of April, 1913. If the mortgage had been paid prior to the sale thereunder, the sale was void, and the purchaser acquired no title. If said mortgage had not been paid in full at the time of said sale, then the purchaser acquired a title to the land, and this appellee, holding under said purchaser, was entitled to recover. Under the evidence, these questions were properly submitted to the jury, resulting in a verdict for the plaintiff.

[1] We do not question the soundness of the rule of law, as contended for by appellants’ counsel, that a mortgage to secure advances and credits to be made within a certain limited time will not be available as a security for any made after the time designated, or that the mortgage in question can stand as a security for advances made by the mortgagees to the mortgagors subsequent to the year 1909. The defendants, however, attempted to establish considerable credits, covering several years subsequent to the year 1909, for the purpose of showing that the 1909 mortgage had been paid before the foreclosure of same in 1913, and the trial court did not err in permitting the mortgagee to prove other debts, and the taking of other securities, as explanatory of the credits, and for the purpose of showing that the 1909 mortgage had not been thereby paid. Nor was there error in permitting Wood to testify as to the item paid Dean on a mortgage given by the defendants the' previous year, as this went to explain and establish the indebtedness and amount of same between Duggan, Wood & Go. and the defendant Johnson.

[2] The witness Wood did not testify positively, of his own knowledge, that the account was correct, but stated that he thought it was, and gave his connection with same, and stated that he went over the same with the defendant, who did not deny or dispute same, and the trial court cannot be put in error for refusing appellants’ motion to exclude the statement that the account was correct because the witness did not make the entries. The court let it in in connection with the statement of the witness that he went over the itemized account with the defendant, and he did not object to same. It was a question for the jury as to whether or not the mortgage had been paid before the foreclosure of same, and the trial court did not err in refusing the general charge requested by the defendants.

[3] The trial court did not err in sustaining the objection to the question to the witness Henderson that the account was listed in the bankrupt court. It may have been listed by the bankrupt without the knowledge or consent of the bank, which said listing could not affect its security, and the witness Henderson testified that the security had never been surrendered, and was still held by him for the bank.

[4] There was no error in refusing the defendants’ requested charge 5. If not otherwise faulty, it pretermits any fraud on the part of any one which may have caused the defendants to think that they were signing a mortgage for $350 instead of $950. Moreover, the mortgage was duly acknowledged before a proper officer, and the recital that the mortgagors were informed of the contents of the instrument is, in no sense, impeached or contradicted by the evidence, even if the same was permissible, which we do not decide.

Rinding no reversible error in the record, the judgment of the circuit court is affirmed.

Affirmed.

SAYRE, concur. GARDNER, and MILLER, JJ.,