Hooper v. Birchfield

• Citation: 115 Ala. 226,22 So. 68
• Parties: HOOPER ET AL. v. BIRCHFIELD ET AL.
• Decision Date: 29 April 1897
• Court: Supreme Court of Alabama

22 So. 68

115 Ala. 226

HOOPER ET AL. v. BIRCHFIELD ET AL.

Supreme Court of Alabama

April 29, 1897

Appeal from circuit court, Clay county; George E. Brewer, Judge.

Statutory action of detinue, commenced in justice court by Hooper &amp Nolen against P. F. Birchfield and others to recover three cows and their increase. Judgment was rendered for plaintiffs, from which an appeal was taken to the circuit court, and the case there tried anew, and from a judgment for defendants, plaintiffs appeal. Affirmed.

The suggestion was made by defendants upon the record that the suit was founded upon a mortgage, and asking for an ascertainment by the jury of the amount of the mortgage debt and the defendants filed three pleas. The first was the general issue. The second plea, as originally filed, embodied all the defenses to the mortgage debt, and averred that the debt for which the note secured by the mortgage was given was usurious, setting out specifically the various items of usury charged; also a want of consideration in part, for the reason that the consideration of such mortgage debt was previous accounts and notes given by defendants to cover such account and a number of items on the account were fictitious and erroneously charged, setting forth specifically such items. The plea further averred the payment on such mortgage debt of $175, and full payment thereof; the amounts of usurious interest; and the false or erroneous items on the account whereon there was no consideration, reducing the debt to less than $175. The third plea averred that the mortgage debt was usurious, and that usurious interest had been charged thereon to the amount of $200, and further averred payment. Plaintiffs moved to strike these pleas upon the ground, in substance, that they were duplicitous in joining two or more defenses,-usury and payment, and usury, failure of consideration, and payment; and also demurred upon substantially the same grounds. The motion to strike was granted. Thereupon defendants, by leave of the court, amended their pleas and suggestions Nos. 2 and 3, and filed an additional plea numbered 1st additional plea. In plea No. 2 as amended, all matters in respect to payment and failure of consideration were striken out, and it was framed as a plea of usury alone. The third plea, as amended, contains the suggestion that the action is founded upon a mortgage, and that plaintiffs claimed such property sued for under a mortgage made to them by defendants, and averring the payment of such mortgage indebtedness. In the first additional plea the same suggestion is made as to the action being founded upon a mortgage made by defendants to plaintiffs, and the consideration of the note secured thereby, being an account and former notes and mortgages covering such account, during several years' dealings between the parties, as averred in plea No. 2, as amended; and further averring a want of consideration for such debt, setting forth the facts, showing wherein the mortgage note was without consideration; and under the facts averred in such plea the note secured by the mortgage was wholly without consideration, the account upon which it was founded containing fictitious, simulated, and wrongful charges in excess of the note; the plea being in fact a plea of want of consideration in the mortgage debt, and averring with particularity the facts showing such want of consideration and such fictitious and erroneous charges that entered into the account as averred. Plaintiffs demurred to the second plea as amended and the additional plea. The demurrers to plea No. 2 as amended were, in substance, as follows: (3) That the plea of usury cannot be interposed in this action. (4) That the facts do not sufficiently show usury in the mortgage debt in this: that it does not appear that there was an agreement between plaintiffs and defendants that usury should be charged in all the instances mentioned in the plea. (5) The plea purports to be in bar of the whole action, and shows only a partial defense thereto. (6) That it is averred that plaintiffs claim title under a mortgage, and in such a suit there can be no inquiry into the alleged charge of usury. The demurrers to the additional plea were on two grounds, as follows: (1) That the plea is in bar, but shows a balance due on the mortgage debt. (2) It appears from the plea that defendants owe a balance of the mortgage. Each of these demurrers was overruled, and plaintiffs duly excepted. ...