Claraday v. Abraham

• Decision Date: 23 November 1911
• Citation: 56 So. 720,174 Ala. 130
• Parties: CLARADAY ET AL. v. ABRAHAM.
• Court: Alabama Supreme Court

56 So. 720

174 Ala. 130

CLARADAY ET AL. v. ABRAHAM.

Supreme Court of Alabama

November 23, 1911

Appeal from Circuit Court, Lawrence County; D. W. Speake, Judge.

Action by Jacob Abraham against Archie Claraday and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

D. C Almon and S. A. Lynne, for appellant.

Callahan & Harris, W. T. Lowe, and Tidwell & Sample, for appellees.

SAYRE J.

The complaint follows the Code form in ejectment, except that in the caption plaintiff describes himself as trustee, thus indicating a beneficial ownership of the land sued for in another. Causes in ejectment are determinable upon the legal title, and are none the less so when there is a separation of the legal and equitable titles. It would seem to be scarcely necessary to say that the statute requiring suits on contracts for the payment of money to be prosecuted in the name of the party really interested has no relation to suits in ejectment. Dane v. Glennon, 72 Ala. 160.

The land sued for is described according to the government survey, and concludes as follows: "Less one and one-half acres in the northeast corner of the west half of southeast fourth of said section twenty-one." The same description occurs in the mortgage upon which plaintiff's title was based, and which will be noticed in another connection. This description identifies the property sufficiently to pass the legal title. The exception, if anything, is void. Frank v. Myers, 97 Ala. 437, 11 So. 832; Loyd v Oates, 143 Ala. 231, 38 So. 1022, 111 Am. St. Rep. 39.

If there was error in striking defendant's several pleas in bar, it was an error of method merely, and did not prejudice the appellants' defense. The case was properly tried on the plea of not guilty under which all facts going in denial of plaintiff's right of recovery were provable, and which was, indeed, the only appropriate plea in bar. Bynum v Gold, 106 Ala. 427, 17 So. 667; Richardson v Stephens, 114 Ala. 238, 21 So. 949.

Appellee plaintiff below, showed title as a mortgagee in a mortgage executed by defendants and a deed executed and delivered to him upon foreclosure proceedings in pursuance of the mortgage. Appellants offered to prove that, being unable to read the mortgage for themselves, they executed the same in reliance upon appellee's false and fraudulent representation as to its contents. This was not an inquiry into the consideration for the...