McClendon v. Doe

• Decision Date: 17 January 1899
• Citation: 122 Ala. 384,25 So. 30
• Parties: MCCLENDON ET AL. v. DOE EX DEM. ET AL.
• Court: Alabama Supreme Court

25 So. 30

122 Ala. 384

MCCLENDON ET AL. v. DOE EX DEM. ET AL.

Supreme Court of Alabama

January 17, 1899

Appeal from city court of Gadsden; John H. Disque, Judge.

This was a common-law action of ejectment, brought by John Doe ex dem. the Equitable Mortgage Company and another against James McClendon and Jonathan Hazel. In the complaint the demises were laid in the Equitable Mortgage Company and the Equitable Security Company. The defendant Hazel filed a motion, in which he asked that the defendant McClendon, who was his landlord, be made the sole party defendant. Objection being made by the plaintiff, this motion was overruled. The defendant McClendon filed the plea of not guilty, and verified plea, in which he denied the execution of the mortgage which was the foundation of the plaintiff's title to the land sued for. The plaintiff moved to strike this special plea from the file on the ground that it was not a proper answer to the action. The court granted this motion and had the plea stricken from the file, and to this ruling the defendant duly excepted. The foundation of the plaintiff's title to the land sued for was the mortgage alleged to have been executed by James McClendon and his wife to the Equitable Mortgage Company, which was foreclosed under the power contained therein, and the purchaser at said sale conveyed the lands by deed to the plaintiff. The other material facts of the case are sufficiently stated in the opinion. Upon the introduction of all the evidence, 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 laws of Alabama it is not necessary, in order for husband and wife to make a valid mortgage, that they, or either of them, should actually sign their names with their own hands; but if they appear before a proper officer, and acknowledge the execution as the law provides and the officer attaches his certificate as the law provides then this is sufficient, so far as the signing of the names to a mortgage is concerned." (2) "The court charges the jury that if they find from the evidence that the certificate is true as to James McClendon, then they will find for the plaintiff." (3) "The court charges the jury, if they find from the evidence that James McClendon signed the mortgage before Moody as an attesting witness, and Moody did attest same in McClendon's presence, and the mortgage was delivered, then they will find for the plaintiff." (4) "The court charges the jury that if they find from the evidence that the certificate is true then they will find for the plaintiff, and it can make no difference whether James McClendon and Rutha McClendon actually did or did not sign their names to the mortgage with their own hands." To the giving of each of these charges the defendants separately excepted, and also separately excepted to the court's refusal to give each of the following charges requested by them: (1) "The court charges the jury that because James McClendon executed the note for the money, and also coupons for the interest for the same, is no evidence that Rutha McClendon signed her name to said mortgage before W. R. Moody on 2d of October, 1889." (2) "Because McClendon paid interest on two coupons for interest is no evidence that Rutha McClendon signed said mortgage before W. R. Moody on the 2d of October, 1889." (3) "The court charges the jury that because McClendon executed his note for the money, and also executed the coupons for the interest to be paid on said mortgage, is no sufficient evidence to show that he executed a mortgage to secure the same before W. R. Moody on 2d October, 1889." (4) "The court charges the jury that the defendants or the McClendons have no right to the custody of any mortgage from the McClendons to the plaintiff, but the right to the custody of such is with the mortgage company; and it is for the plaintiff who holds under the mortgage to show where or what has become of any unsettled mortgages to it from McClendons, and not for the defendants to account for them. The mortgage company, and not the defendants, must account for the second mortgage that Moody says was executed by the same parties on the same day, and before Moody." (5) "The court charges the jury that if they are reasonably satisfied from the evidence that James McClendon signed the mortgage, yet the jury are not reasonably satisfied from the evidence that Rutha McClendon signed her name to said mortgage, then, in such case, the jury must allow the homestead of one hundred and sixty acres to the McClendons, and find verdict for the defendants for the 160 acres, the description of which is undisputed, and is, 'southwest quarter section 13, township 11, range 5,' and there being no dispute that the McClendons are entitled to such homestead, if the jury believe Rutha McClendon never signed said mortgage." (6) "The court charges the jury that if, from the evidence, they are reasonably satisfied that Rutha McClendon did not sign her name to the mortgage in presence of W. R. Moody on the 2d October, 1889, then, in such case, the verdict must be for the defendants. In determining what credence the jury will give the evidence of W. R. Moody, they may look to what he swears, and whether or not he is contradicted by any witness or witnesses, and how many, and also upon what point he is so contradicted; and the jury, in this connection, may consider, in connection with all the other evidence, whether Rutha McClendon can write her name, or make her signature by her mark, and if the mortgage is signed by her writing her name or by making her mark; and if, after considering all the facts,-if the jury believes the evidence shows such facts, in connection with all the other evidence in the case,-the jury are not reasonably satisfied Rutha McClendon wrote her name to the mortgage, and it appears on said mortgage, then the verdict of the jury must be for the defendants." (7) "Although the law does not require the mortgage to be signed by mortgagors in their own handwriting, yet the evidence must show that, if they did not sign the mortgage by their own hand, yet the evidence must show that the McClendons authorized some other person to sign their names to said mortgage for them." (8) "Because the defendants deny that they executed the mortgage in question, but say they executed a mortgage to secure the money to the mortgage company before Dave Vann, is no evidence that the defendants intended, or now intend, to defraud the mortgage company." There were verdict and judgment for the plaintiff. The defendants appeal, and assign as error the several rulings of the trial court to which exceptions were reserved. Affirmed.

Denson, Burnett & Culli, for appellants.

Dortch & Martin, for appellees.

TYSON J.

This was a real action of ejectment, in which appellees were plaintiffs, and appellants James McClendon and Jonathan Hazel were defendants. The only error assigned by Hazel was the refusal of the court, upon objection of plaintiffs, to grant his motion that McClendon, his co-defendant, who was his landlord, be made sole party defendant. The evident object of this motion was to secure his discharge from any further proceedings in the cause, thereby relieving him of any liability to plaintiffs for rent in arrear at the commencement of the suit and such as might accrue during the continuance of his possession should the plaintiffs succeed in recovering a judgment for the lands. The manifest purpose of Code 1896, § 1534 (Code 1886, § 2700), was to confer upon the tenant, when sued in an action of ejectment, the right, which did not exist at common law, of compelling his landlord to appear and defend his title, and to relieve the tenant of the burden of litigating with the plaintiff a matter in which he has no interest other than to pay his obligation of rental to the person who can give to him a legal...