Hart v. Sharpton

• Decision Date: 31 January 1900
• Citation: 124 Ala. 638,27 So. 450
• Parties: HART ET AL. v. SHARPTON.
• Court: Alabama Supreme Court

27 So. 450

124 Ala. 638

HART ET AL. v. SHARPTON.

Supreme Court of Alabama

January 31, 1900

Appeal from circuit court, Cullman county; H. C. Speake, Judge.

Action by D. S. Sharpton against J. K. Hart and others. From a judgment in favor of plaintiff, defendants appeal. Reversed.

This was a statutory action of detinue, brought against the appellants by the appellee.

The complaint was as follows: "The plaintiff claims of the defendants the following personal property, to wit, one gristmill, Delooch make, one Winship gin and press, together with all the fixtures belonging thereto, with the value of the hire or use thereof during the detention, from the 12th day of December, 1896." To this complaint the defendants demurred upon the ground tat it was vague, indefinite and uncertain as to the description of the property sued for. This demurrer was overruled and the defendants duly excepted.

The defendants filed seven pleas. The first, second and fourth pleas were as follows: "(1) The defendants, as a defense to this action, plead and say that they hold and own the property described in this suit under a purchase from J. H Holmes, and that they do not unlawfully detain the property sued for in plaintiff's complaint. (2) That plaintiff sues and claims title under mortgage, and defendants as a further defense say, that the mortgage debt has been fully paid before the commencement of this suit. (4) That the mortgage under which plaintiff claims has been altered, as to its condition and provisions, without the knowledge or consent of defendants, which said alteration is apparent upon its face." The substance of the other pleas is sufficiently stated in the opinion.

The defendants demurred to the third plea upon the ground that it did not show in what way or manner the mortgage under which the plaintiff claimed had been materially altered or changed. This demurrer was sustained. The demurrers to the other pleas were not shown to have been acted upon.

On the trial of the case it was claimed that the plaintiff claimed title to the property sued for under a mortgage executed to him by one J. H. Holmes, bearing date March 24, 1894. The defendants claimed title to the property sued for under a purchase from said Holmes, and their contention was that by reason of the plaintiff having executed a receipt to said Holmes for the full satisfaction of the principal and interest due on said mortgage, they were induced to purchase the property involved in the suit. The facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion.

The court at the request of the plaintiff gave to the jury the following written charges: "(1) The court charges the jury that under the evidence there is no usury in the note in evidence. (2) The court charges the jury that there is no evidence in this case that the note in evidence contains usurious interest. (3) The court charges the jury that the note in evidence is not usurious under the testimony in the case. (4) The court charges the jury that the receipt given by Brown to Holmes, is open to explanation; and if there was a mistake in it, it is the duty of this jury to cancel it by their verdict. (5) The court charges the jury that the receipt given by Brown to Holmes, is not a full discharge of the debt, if they find that there was a mistake in the calculation of the interest due at time. (6) The court charges the jury that before they can find a verdict for the defendants, each juror must be satisfied from the evidence either that the note and mortgage, or one of them, was materially altered after being signed and delivered or recording fee was paid by Holmes before the suit was brought. (7) The court charges the jury that if they believe the evidence, they must find that the amount paid by Sharpton for recording the mortgage was never paid by the mortgagee, and they must find that this amount was due on the mortgage at the time this suit was brought. (8) The court charges the jury that the burden is upon the defendants to prove to the satisfaction of the jury that the note and mortgage was changed after it was signed and delivered to Sharpton. (9) The court charges the jury that the law does not require a man to enter upon the record of any mortgage any partial payment until a written notice or request to do so is given the person holding said mortgage. (10) The court charges the jury that they may consider the testimony of A. L. Hays, the clerk in the probate judge's office, as to the filing and recording of the note and mortgage, and the record of the same in the mortgage book, or record, official in evidence."

The defendants separately excepted to the giving of each of these charges, and also separately excepted to the court's refusal to give each of the following written charges requested by them: "(1) The court charges the jury that if they believe the evidence in this case, they must find a verdict for the defendants. (2) If the jury believe from the evidence that Holmes told defendants that he had a receipt in full against the mortgage and note in evidence, as to principal and interest, and that said mortgage was paid off and you find that said representation was true, and you find that defendants were induced by such representation to purchase the property in the mortgage, and that plaintiff or his attorney gave said receipt in full as to principal and interest, then plaintiff would be estopped by said receipt to deny that the mortgage was paid in full as to principal and interest, or to explain any mistake therein, as against these defendants."

The verdict returned by the jury was as follows: "We, the jury, find for the plaintiff, and assess the value of the mill at $100; the value of the gin nothing, and the value of the press at nothing; and we further assess the hire of said mill at $56, and further find due on the mortgage $3.76 interest." The judgment of the court was in accordance with the verdict. The defendants appeal, and assign as error the several rulings of the trial court to which exceptions were reserved.

J. B Brown, for appellants.

HARALSON J.

Detinue for the recovery of chattels in specie.

1. We need not decide whether or not the complaint was liable to the objection raised to it by demurrer, for that its description of the fixtures belonging to the gin and press sued for, was insufficient. The mill alone of all the property described in the complaint was removed by the plaintiff. There was no verdict for the gin or press or either of them and their fixtures; and the judgment, answering the verdict, was for the mill or its alternate value. So, if there was error in overruling the demurrer, it was without injury to defendants,-the appellants.

2. The demurrer to the third plea was, that it did not show in what way or manner the mortgage under which the plaintiff claimed, had been materially altered or changed. The averment as to said alleged alterations, was the mere conclusion of the pleader, and the demurrer was properly sustained. This was the only plea to which a demurrer was sustained. It does not appear that the court passed on the demurrers to the other pleas, and they will, therefore, be treated as having been waived. Walker v. Cuthbert, 10 Ala. 213; Land Co. v. Morgan, 88 Ala. 434, 7 So. 249.

The case was tried upon the first plea,-that of the general issue; the second and fifth, in substance, that the mortgage debt had been fully...