Lomb v. Pioneer Savings & Loan Co.

• Decision Date: 14 May 1895
• Citation: 106 Ala. 671,106 Ala. 591,17 So. 670
• Court: Alabama Supreme Court
• Parties: LOMB v. PIONEER SAVINGS & LOAN CO.

17 So. 670

106 Ala. 591, 106 Ala. 671

LOMB v. PIONEER SAVINGS & LOAN CO.

Supreme Court of Alabama

May 14, 1895

Appeal from city court of Birmingham; W. W. Wilkinson, Judge.

Statutory action, in the nature of ejectment, by the Pioneer Savings &amp Loan Company against Artie H. Lomb, to recover certain lands. From a judgment for plaintiff, defendant appeals. Affirmed.

On the trial of the case the defendant suggested that the suit was brought by the mortgagee against a mortgagor, and that the mortgage debt should be ascertained, and entered of record. The case was tried upon issue joined upon the following pleas: First, that the action was founded upon a mortgage executed by the defendant to the National Building, Loan &amp Protective Union of Minneapolis, Minn., and that the plaintiff had no right thereunder which it could enforce in its own name; the defendant intending to raise by said plea the point that the plaintiff was not identical with the corporation to which the mortgage was executed. By the second plea the defendant set up that the National Building, Loan &amp Protective Union was a foreign corporation, and had not complied with the laws of Alabama as to the designation of an agent and place of business, at the time of the execution of the mortgage. Plea No. 4 set up payment of the mortgage debt. Plea No. 8 was the general issue of "not guilty." Plea No. 9 was substantially the same as the first plea. The evidence for the plaintiff tended to show that on December 1 1890,-the date the mortgage was executed to the defendant,-the National Building, Loan & Protective Union of Minneapolis, Minn., the mortgagee in such mortgage, was a building and loan corporation duly and legally organized under the laws of Minnesota. The plaintiff introduced in evidence the mortgage executed by the defendant and her husband to the said National Building, Loan & Protective Union, conveying the lands sued for in this action, and proved that prior to the execution of the said mortgage the National Building, Loan & Protective Union had complied with the laws of Alabama as to the designation of agents of foreign corporations. The plaintiff also introduced in evidence duly-certified copies of acts of the general assembly of Minnesota, and resolutions of the board of directors of the National Building, Loan & Protective Union, of Minneapolis, Minn., which showed that the name of the National Building, Loan & Protective Union of Minneapolis, Minn., was changed in May, 1891, in accordance with the laws of the state of Minnesota, to that of the Pioneer Savings & Loan Company, and that since that time it had used only the latter name. It was also shown by the plaintiff that the defendant had made default in the payment of the interest and installments as provided in the mortgage, beginning with March, 1891, down to the time of the institution of this suit, on April 8, 1892. It was contended by the defendant, among other things, that the plaintiff was not entitled to recover in this action because at the time of the execution of the mortgage the corporation to whom the mortgage was executed used the word "National" in its corporate name, in violation of section 5243 of the Revised Statutes of the United States. There were many exceptions reserved to the rulings of the court upon the pleadings and upon the evidence introduced, but under the opinion, on this appeal, it is deemed unnecessary to set out these rulings in detail. The cause was tried by the court, which rendered judgment in favor of the plaintiff.

Charles B. Powell and John M. Martin, for appellant.

Cabaniss & Weakley, for appellee.

BRICKELL C.J.

The statutes confer on a party suing for the recovery of lands or of the possession thereof, the right to elect either of the two remedies they provide,-an action of ejectment, or an action in the nature of an action of ejectment. The substance of the complaint in the latter form of action is prescribed, and, in effect, it is an action of ejectment, stripped of the forms and fictions which were at common law the characteristics of that form of action. Code, §§ 2695, 2696. And it is declared that "the general issue in an action in the nature of an action of ejectment is 'not guilty' and under it the defendant may give in evidence the same matter which may be given in evidence under such plea in an action of ejectment." Id. § 2698. The scope and extent of the plea of "not guilty," in an action of ejectment, is well defined. It casts upon the plaintiff the burden of proving a legal right to the possession of the premises in dispute, and, of consequence, whatever operates a bar to his right of possession causes him to fail, entitling the defendant to a verdict. Unless it be of matter puis darrein continuance, the defendant may not plead any other plea. It is unnecessary, and is foreign to the nature of the action. Bynum v. Gold (present term) 17 So. 667; Till. Adams, Ej. § 70; Tyler, Ej. 464. If the matter of the special pleas to which demurrers were sustained be available as a defense, it was available under the general issue, and these pleas could well have been stricken from the file as inappropriate and immaterial. There is a dictum seemingly to the contrary in Slaughter v. Swift, 67 Ala. 494, resulting from the inadvertence of not distinguishing between the scope and effect of the general issue in this form of action and the scope and effect of the general issue in other civil actions. The real question in that case was whether, in an action of ejectment by a mortgagee, the action could be defeated on evidence of payment of the mortgage debt, and it was decided that such defense was unavailing. Since the statute (Code, § 2707) has authorized the mortgagor, or any one holding under him, to plead payment of the mortgage debt, or performance of the conditions of the mortgage, in bar of an action by a mortgagee or his assignee for the recovery of the mortgaged premises, it may be that now payment of the mortgage debt, or performance of the condition, may be pleaded specially. If that be true, the plea of the performance of the condition of the mortgage, which the defendant interposed, was too...