Karter v. Fields

• Decision Date: 31 May 1904
• Citation: 140 Ala. 352,37 So. 204
• Parties: KARTER v. FIELDS.
• Court: Alabama Supreme Court

37 So. 204

140 Ala. 352

KARTER v. FIELDS.

Supreme Court of Alabama

May 31, 1904

Appeal from Circuit Court, Cullman County; H. C. Speake, Judge.

Action by A. E. Fields against J. H. Karter. Judgment for plaintiff. Defendant appeals. Reversed.

This was an action of trespass on the case to recover damages for the sale and removal of cotton in the year 1893 by the defendant, upon which cotton the plaintiff claimed to have had a lien under and by virtue of a mortgage, of which lien and mortgage the defendant had knowledge or notice, and that by reason of such sale and removal of the cotton by the defendant the plaintiff was prevented from enforcing his lien. In the amended complaint, as filed, it was averred that the cotton in controversy was raised by one J. M. Persall in the year 1892, and that on said cotton the plaintiff had a lien by virtue of a mortgage executed to him by said Persall.

To the amended complaint the defendant pleaded the general issue of not guilty and the following special pleas:

"Second. That the debt, the consideration of the mortgage, described in the complaint, was paid or satisfied in full before this suit was brought.

"Third. That the mortgage described in the complaint, and the notes for which said mortgage was given to secure, were executed by J. M. Persall for the purchase money of the following described lands, to wit, the N. 1/2 of the N.W. 1/4 and the S.W. 1/4 of the N.W. 1/4 and N.W. 1/4 of the S.W. 1/4, Sec 26, Tp. 10, R. 1, west, Cullman county, which said J. M Persall had purchased from said plaintiff; that said plaintiff at the time said Persall bought said land, and at the time said Persall executed said notes and mortgage represented to said Persall that he, plaintiff, had a good title to said lands, and would execute and deliver to him, Persall, a good deed thereto; and defendant avers that said plaintiff, notwithstanding his said contract to execute to said Persall a good deed to said lands, and with intent to defraud said Persall, executed and delivered a deed describing other lands of less value, and to which plaintiff had no title, and refused, upon demand made by said Persall, and presentation of a warranty deed for execution describing the lands purchased by said Persall, after he had discovered the plaintiff's fraudulent acts, to execute to said Persall a good deed to the lands he had purchased from said plaintiff; and defendant avers that said Persall, upon refusal of said plaintiff to execute to him such good deed, offered to rescind said contract with said Fields for the purchase of said lands, and abandoned the possession of the lands which he had purchased, of which he was in possession, and the said Fields thereupon, and before the commencement of this suit, entered upon said lands and assumed control and full possession thereof, thereby accepting the said offer of said Persall, and sold the said lands to another party for an amount equal to said mortgage debt.

"Fourth. The plaintiff's action is barred by the statute of limitation of one year.

"Fifth. That the debt, the consideration for the execution of the mortgage mentioned in the complaint, has been paid or satisfied since this suit was commenced.

"Plea No. 6. The defendant for further answer to the complaint on file in this cause says that heretofore, to wit, on the 18th day of September, 1899, the plaintiff recovered a judgment in the circuit court of Cullman county, Ala., against this defendant for the sum of three hundred and sixty-one and 20/100 dollars for cotton alleged by plaintiff to have been purchased by the defendant during the year 1892 or 1893, which said cotton was alleged to have been described in the mortgage referred to and described in the complaint in this cause, and defendant alleges that said suit was between the same parties as this suit, and upon the same cause of action or lien described in this suit, and said amount so recovered was for an amount more than was due upon said mortgage by said Persall at the time of the commencement of this suit, and defendant pleads said judgment as a credit upon said mortgage, and in satisfaction and payment of the same, and in bar to this action."

To the second plea the plaintiff demurred upon the following grounds: (1) Said plea does not allege or show that the mortgage was paid or satisfied at the time of the wrong or injury mentioned in the complaint. (2) Said plea is in the nature of a plea of accord and satisfaction, and does not allege or show that plaintiff was in any way connected with or advised of the payment or satisfaction of said mortgage. (3) Said plea does not allege or show how, in what way or to whom the consideration of said mortgage was paid or satisfied.

To the third plea the plaintiff demurred upon the following grounds: (1) Said plea presents no defense to the matters alleged in the complaint. (2) Said plea does not allege or show that the matters and things set up in said plea as an answer to the complaint were performed before the wrong and injuries mentioned in the complaint were committed by the defendant. (3) Said plea does not allege or show that said alleged rescission of the said land sale to said Persall was to be in satisfaction and settlement of any claim or right of action of plaintiff against the defendant, because of the wrongs and injuries mentioned in the complaint, or that such alleged rescission was made in satisfaction thereof. (4) It is not alleged or shown in said plea that the alleged acts therein mentioned were done and performed in consideration and satisfaction of the wrongs and injuries complained of in the complaint.

To the sixth plea the plaintiff demurred upon the following grounds: (1) Said plea does not allege or show that the cause of action in the two cases are identical and the same. (2) Said plea does not allege or show that said alleged judgment has been paid or satisfied. (3) Said plea proposes to be a plea of res adjudicata, and fails to allege or set forth the necessary facts constituting the essential elements of such a plea.

To the fifth plea the plaintiff demurred upon the following grounds: "(1) Said plea does not allege or show any facts if established by legal evidence, is a defense to this action. (2) Said plea does not allege or show that the wrong and injury mentioned in the complaint has been compromised or satisfied, or that the payment or satisfaction of the mortgage is a satisfaction of plaintiff's cause of action against defendant as alleged in the complaint."

These separate demurrers to the several pleas were each sustained, and the cause was tried upon issue joined on the plea of the general issue.

The plaintiff asked leave of the court to amend the amended complaint, which averred that the cotton in controversy was raised by J. M. Persall during the year 1892, and that the plaintiff had a lien upon the cotton raised in the year 1892, by striking out of said count the figures "1892" and inserting in lieu thereof, where they occurred in said count, the figures "1893." The defendant objected to the allowance of this amendment, upon the ground that it worked an entire change of the cause of action. The court overruled the objection, allowed the plaintiff to amend his complaint as requested, and to this ruling of the court the defendant duly excepted.

The plaintiff introduced in evidence, as the basis of his claim to the cotton alleged to have been purchased and removed by the defendant, a mortgage, which was given to the plaintiff by J. M. Persall and his wife, J. R. Persall, on August 18, 1890. This mortgage was upon certain specifically described lands, and also upon all the crops grown by the mortgagees "from year to year until this debt is satisfied in full."

There was evidence introduced tending to show that the mortgage was given to the plaintiff to secure the purchase money for the lands conveyed in said mortgage, which lands were sold by the plaintiff to said J. M. Persall, and that these lands were known as the "Archer Place."

The evidence for the plaintiff tended to show that the cotton involved in this suit was raised by said Persall on the lands conveyed in said mortgage, in the year 1893, and were purchased by the defendant and removed by him, and that the plaintiff was thereby prevented from enforcing his lien upon said cotton.

There was evidence introduced on the part of the defendant tending to show that the cotton which was sold by Persall to the defendant, and which the defendant removed, was raised in the year 1892, and there was further evidence introduced by the defendant tending to show that the land involved in the mortgage was not the same land as is known as the "Archer Place," and, further, that the mortgage indebtedness of the defendant to the...