McEntyre v. Hairston

• Decision Date: 13 June 1907
• Citation: 44 So. 417,152 Ala. 251
• Parties: MCENTYRE v. HAIRSTON ET AL.
• Court: Alabama Supreme Court

44 So. 417

152 Ala. 251

MCENTYRE v. HAIRSTON ET AL.

Supreme Court of Alabama

June 13, 1907

Appeal from Circuit Court, Dale County; A. A. Evans, Judge.

Ejectment by T. H. McEntyre against Nettie F. Hairston and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded.

The following charges were given for the defendant: "(1) If the jury believe from the evidence that the mill machinery in question was sold at public auction under the mortgages in question, according to the form of sale in them contained and in pursuance of its said form of sale, then the amount for which said machinery sold at such sale is all the plaintiff is entitled as credit on said mortgages on account of said machinery. * * * (3) If the jury believe from the evidence that the machinery in question was conveyed in either of the mortgages in question, and was sold at foreclosure sale at public outcry as provided by the mortgages, then plaintiff is entitled to credit for only the amount for which the machinery was so sold. (4) The jury will look to all the evidence, including the advertisement in the Southern Star in evidence, and the testimony concerning the hauling of the machinery in question and of the sale thereof, in determining whether or not the mortgages in question were legally foreclosed on said machinery." Charge 4, in plaintiff's series of refused charges, was as follows "The burden is upon the defense to show by evidence a ratification by the plaintiff, if they rely upon that to make good a mortgage executed by a minor; and this they must do to the entire satisfaction of the jury, or they must fail on the question of ratification."

R. H Walker, for appellant.

DENSON J.

This is a statutory action of ejectment. From a judgment by the circuit court in favor of the defendants, the plaintiff prosecutes this appeal.

No brief has been filed for the appellees, and if some of the 29 grounds of error assigned have been discussed in the brief filed by counsel for the appellant, yet not a single authority is cited in the brief on any point of law involved. So we are left to search for authorities, if needed, without the aid of counsel. We shall make the best effort we can to treat the case properly; but, if some of the points should be overlooked, counsel will have only themselves to thank for the omission.

The record fails to show that a deed by Anna J. Dowling and H. H Dowling to appellee, Nettie F. Hairston, was offered in evidence; hence the first ground of error has no foundation in fact.

The second ground in the assignment of errors will not be considered, for the reason that it is not insisted upon in appellant's brief. What is said in the brief in respect to this assignment is a mere repetition of the objection that was made to the deed when it was offered. Mitchell v Gambill, 140 Ala. 545, 37 So. 402.

Two mortgages executed by plaintiff and one Hughs Massey to Alto V. Lee as trustee were necessary links in defendant's chain of title. The originals of these mortgages were not produced, and, against the plaintiff's objection that the proper predicate for the introduction of secondary evidence was not made, the court allowed copies (not certified copies) of the mortgages to be introduced as evidence. The evidence on which the copies were admitted was as follows: Alto V. Lee testified that the plaintiff and Hughs Massey executed to him two mortgages, one in December, 1895, and the other in January, 1896; that he did not know where the mortgages were that his last recollection of them was that they were in the store or safe of Shelly Dowling & Co.; that he took a receipt from Mrs. Dowling and the cestui que trust named in the deed of trust to him (Shelly Dowling and Drucilla Dowling) for all papers in his possession, and turned them over...