Carlisle v. People's Bank

• Decision Date: 30 May 1899
• Citation: 122 Ala. 446,26 So. 115
• Court: Alabama Supreme Court
• Parties: CARLISLE v. PEOPLE'S BANK.

26 So. 115

122 Ala. 446

CARLISLE v. PEOPLE'S BANK.

Supreme Court of Alabama

May 30, 1899

Appeal from circuit court, Pike county; W. W. Kirkland, Judge.

Detinue by the People's Bank against H. C. Carlisle. From a judgment for plaintiff, defendant appeals. Reversed.

After the introduction in evidence of the mortgage under which the plaintiff claimed title to the property sued for, the plaintiff offered to introduce in evidence a bond for title which was given by W. B. Folmar to the defendant H. C Carlisle, conditioned to make title to said Carlisle to certain lands therein described, upon the payment of said five notes which had been introduced in evidence, they being for the purchase money of said lands. In said bond for title it was stated that all of the notes given for the purchase money of said land bore even date with said bond for title together with the mortgage involved in this suit, which, as recited in said bond, was "executed by H. C. Carlisle to W. B. Folmar on certain personal property to better secure the debt named in the above notes." The defendant objected to the introduction in evidence of said bond for title, upon the grounds (1) that it was irrelevant; (2) that said bond could not be looked to as an aid in the construction of said mortgage; and (3) that said bond could not be considered by the jury in order to supply any defect or omission in said mortgage. The court overruled this objection, allowed the bond to be introduced in evidence, and to this ruling the defendant duly excepted.

M. N Carlisle, for appellant.

R. L. Harmon, for appellee.

DOWDELL J.

This was an action in detinue brought by appellee against the appellant for the recovery of certain personal property described in the complaint. While the bill of exceptions recites that issue was joined on pleas 1, 2, and 7, no evidence was offered on the trial, except upon plea No. 1. This plea is the general issue under the statute (Code 1896, § 3295), and is the same in effect and equivalent to the plea of non detinet at common law. Berlin Mach. Works v. Alabama City Furniture Co., 112 Ala. 488, 20 So. 418. This plea puts in issue the right of the plaintiff to recover. Foster v. Chamberlain, 41 Ala. 167.

The plaintiff relied for recovery on his title under a mortgage executed by the appellant, defendant in the court below, to the plaintiff. The mortgage, in terms, conveys the property in question to secure a debt, evidenced by defendant's note in the sum of $750, and also for any advances that might be made to the defendant. After this recital in the mortgage and following the description of the property conveyed, and just preceding the habendum clause, the following recital is made, to wit: "This mortgage is given to better secure 5 notes this day given to W. B. Folmar by...