Boswell v. Land

• Decision Date: 10 November 1927
• Docket Number: 2 Div. 904
• Citation: 217 Ala. 39,114 So. 470
• Parties: BOSWELL v. LAND.
• Court: Alabama Supreme Court

114 So. 470

217 Ala. 39

BOSWELL v. LAND.

2 Div. 904

Supreme Court of Alabama

November 10, 1927

Appeal from Circuit Court, Choctaw County; T.J. Bedsole, Judge.

Ejectment by Robert Land against D.M. Boswell. From a judgment for plaintiff, defendant appeals. Affirmed.

Thos F. Seale, of Livingston, for appellant.

Gray &amp Dansby, of Butler, for appellee.

SAYRE J.

Action of statutory ejectment by appellee. Both parties claimed through mortgages executed by a common mortgagor. Appellee's mortgage antedated appellant's appellant's mortgage was first on the record; evidence for appellee went to show that appellant, when taking his mortgage, had actual notice of appellee's; but, as to that, the evidence was in conflict. Both mortgages had been foreclosed.

Appellee showed that on a former trial of this cause his muniments of title had been left with the clerk of the court. The clerk's file showed a receipt for the papers by appellee's attorney, and the evidence otherwise showed without dispute that they had been delivered by the clerk to the attorney. The attorney, testifying, said that he had diligently searched in every place where the papers were likely to be found and where he thought they might possibly be, but had been unable to find them. The clerk testified that the papers had not been returned to him and that he had made no search of his office for them. We are inclined to the view that the proof was sufficient to justify the trial judge in admitting the records of the office of the judge of probate where these papers had been recorded. Jernigan v. State, 81 Ala. 58, 1 So. 72; Jones on Ev. (2d Ed.) § 213.

Numerous assignments of error, based upon rulings of the court touching the testimony of appellee with reference to the amount of the mortgagor's indebtedness to him under his mortgage and the expenses incurred in its foreclosure, are argued in solido. The mortgage provided security for then future advances to be made by appellee to the mortgagor and for the expenses of foreclosure, in the event of mortgagor's failure to pay at maturity. The mortgage had been foreclosed, as aforestated; there was no plea of previous payment; and this testimony may not have been required by duty or the necessity of appellee's case ( Jackson v. Tribble, 156 Ala. 482, 47 So. 310; Ramsey v. Sibert, 192 Ala. 176, 68 So. 349), but it is not perceived that the rulings in question involved any hurt to appellant's case.

Nor was there reversible error in allowing questions by appellee to mortgagor as to why he went to appellant's place of business on the occasion of his execution of the mortgage to appellant, or how it was that appellant's mortgage on 160 acres of land covered the 120 acres included in appellee's mortgage. There is no argument of these questions separately or as a class; but we are willing to say that the answers to these questions were not improperly admitted as tending in some sort to refute the...