Knight v. Garden

• Decision Date: 20 April 1916
• Docket Number: 6 Div. 268
• Citation: 71 So. 715,196 Ala. 516
• Parties: KNIGHT v. GARDEN.
• Court: Alabama Supreme Court

71 So. 715

196 Ala. 516

KNIGHT v. GARDEN.

6 Div. 268

Supreme Court of Alabama

April 20, 1916

Appeal from Circuit Court, Walker County; J.J. Curtis, Judge.

Detinue by Rebecca Garden, as administratrix, against W.M. Knight. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals under section 6, Act April 18, 1911, p 450. Reversed and remanded.

Finch &amp Pennington, of Jasper, for appellant.

Gunn &amp Powell, of Jasper, for appellee.

THOMAS J.

The action is in detinue for a mule claimed by virtue of a mortgage. The judgment entry recites that the defendant pleaded the general issue. The exact form of the plea is not disclosed by the record. The plaintiff proved that Lando Patton owned the mule in question, and that he was indebted to appellee's intestate, and that to secure this indebtedness he executed a mortgage to said intestate. The defendant, appellant, proved his purchase of the mule from H. Bonfield, who claimed it by virtue of his foreclosure of a subsequent mortgage from Lando Patton. The court's rulings on the introduction of evidence are presented for review.

The Patton mortgage to plaintiff's intestate having been introduced in evidence, the defendant asked the witness: "Did you sign that mortgage, Mr. Patton?" Plaintiff objected, because the evidence sought to be elicited was "incompetent, irrelevant, immaterial, or illegal," and because there was no plea of non est factum. The objection was sustained, and defendant duly excepted, and, as appellant, now assigns error on this ruling of the court.

The books are agreed that detention is the gist of the action of detinue. Walker v. Fenner et al., 20 Ala. 192. The general issue in this action is non detinet. 3 Chitty's Pl. 1023; Stephens' Pl. pp. 173, 174. An averment that the allegations of the complaint are untrue is a plea of the general issue. Code, § 5331; Berlin Machine Works v. Ala. City Furn. 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; Wellden v. Witt, 145 Ala. 612, 40 So. 126; Lucas v. Pittman, 94 Ala. 616, 10 So. 603; Ingersoll-Sergeant Drill Co. v. Worthington & Co., 110 Ala. 322, 20 So. 61; Grunewald v. Copeland, 131 Ala. 345, 30 So. 878); and evidence negativing the right of possession of plaintiff or of defendant is competent (Snellgrove v. Evans, 145 Ala. 600, 40 So. 567).

In Pinckard & Lay v. Bramlett, 165 Ala. 327, 51 So. 557, it was held that proof of payment of the mortgage debt may be shown in detinue under the general issue, as tending to divest the legal title of the mortgagee to the personal property in question. Slaughter v. Swift, 67 Ala. 494.

In Green v. Sneed, 101 Ala. 205, 208, 13 So. 277, 46 Am.St.Rep. 119, an action of detinue by a mortgagee against the mortgagor after the law day of the mortgage, it was held that, where the action is not on the original consideration for which the mortgage was executed, but is on the right of recovery of the mortgaged property, and the title asserted by the plaintiff depends upon the validity of the instrument itself, in legal contemplation the instrument which the defendant executed ceases to be his act the moment it is altered, and that the alteration may be shown. The only plea in the Green Case, as shown by the original record in this court, was the general issue; and under that plea proof of the alteration of the mortgage after signature was permitted to destroy the muniment of title upon which the plaintiff relied for recovery.

So in Carlisle v. People's Bank, 122 Ala. 446, 26 So. 115, it was held that under the general issue testimony may be introduced to vary or explain the terms of the mortgage on which the plaintiff relies for title, and to defeat the recovery in detinue. Foster v. Chamberlain & Co., 41 Ala. 167.

In Hoobler v. International Harvester Co., etc., 185 Ala. 533, 537, 64 So. 567, 569, Mr. Justice Sayre said:

"The matters involved in the proper pleas to which we have alluded went to plaintiff's title, and might have been proved under the general issue (Carlisle v. People's Bank, 122 Ala. 446, 26 So. 115), filed after the rulings on pleas 3, 4, and 8, but the court followed up its rulings on these pleas by excluding from the jury evidence of the fact upon which the pleas were based, evidence tending to disprove the title by which plaintiff claimed, and these rulings were erroneous."

In the action of detinue the mortgage in evidence was not the foundation of the suit, although the plaintiff's title or right to the possession of the personalty may rest solely on the mortgage. The suit was for specific property, and the gist of the action was detention. The defendant was not apprised by the complaint of what right of possession the plaintiff would show. When the validity of a record attacked is put directly in issue by the pleadings of the party attacking it by proper averments, the attack is direct, and not collateral; but, when there are no proper averments attacking the record, although its validity is drawn into the issue of ...