American Mortg. Co. of Scotland v. Inzer

• Decision Date: 08 June 1893
• Citation: 13 So. 507,98 Ala. 608
• Parties: AMERICAN MORTG. CO. OF SCOTLAND, LIMITED, v. INZER ET AL.
• Court: Alabama Supreme Court

13 So. 507

98 Ala. 608

AMERICAN MORTG. CO. OF SCOTLAND, LIMITED, v. INZER ET AL.

Supreme Court of Alabama

June 8, 1893

Appeal from circuit court, St. Clair county; Le Roy F. Box, Judge.

Assumpsit by H. J. Inzer and Varina Inzer, as executors of the estate of Joseph Y. Inzer, deceased, against the American Mortgage Company of Scotland, Limited, to recover an alleged surplus arising from the proceeds of the sale of certain mortgaged property, under a power of sale contained in a mortgage executed by plaintiffs' testator and wife to defendant. Judgment for plaintiffs, and defendant appeals. Reversed.

Caldwell Bradshaw and Jas. E. Webb, for appellant.

HEAD J.

This is an action by the executors of a deceased mortgagor to recover from the mortgagee an alleged surplus of the proceeds of the sale of the mortgaged premises left in the hands of the defendant after full satisfaction of the mortgage debt. Among others, the defendant interposed a special plea, alleging that plaintiffs' testator executed a second mortgage on the premises to W. H. Skaggs, to secure an indebtedness greater in amount than the alleged surplus, which mortgage is in force, and creates a valid lien on the premises, and that defendant is liable to said second mortgagee for the surplus. There is copied in the transcript a demurrer to this plea but the record fails to show any ruling upon it. We are therefore forced to treat the demurrer as abandoned, and consider that issue was joined on the plea. This being so the defendant was entitled to prove its plea, and, in the effort to do so, offered to introduce in evidence the said Skaggs mortgage, the execution of which was admitted in an agreed statement of facts. The plaintiffs objected to its introduction; the court sustained the objection; and the defendant excepted. This was error, for which the judgment must be reversed.

We are persuaded that, in fact, the court sustained the demurrer to the special plea referred to, but for some cause the record failed to show it, and that the only controversy between the parties on that plea was whether in law the defendant can defend against the plaintiffs' demand by showing its liability to the second mortgagee for the money in its hands without an averment that that liability had been discharged by payment of the money to such second mortgagee. So impressed, we will indicate our opinion upon that question that the litigation may not be...