Mills v. Hudmon & Co.

• Decision Date: 17 February 1912
• Citation: 57 So. 739,175 Ala. 448
• Parties: MILLS ET AL. v. HUDMON & CO.
• Court: Alabama Supreme Court

57 So. 739

175 Ala. 448

MILLS ET AL. v. HUDMON & CO.

Supreme Court of Alabama

February 17, 1912

Appeal from Circuit Court, Chambers County; S. L. Brewer, Judge.

Action by Hudmon & Co. against A. B. Mills and others. Judgment for plaintiff. Defendants appeal. Affirmed.

Strother Hines & Fuller, for appellants.

E. M Oliver, for appellee.

SOMERVILLE J.

On May 1, 1907, the plaintiff Hudmon & Co. sold to Annie B. Mills 60 acres of land, and executed and delivered to her the deed therefor, for a consideration of $1,196.28. On the same day Annie B. Mills, and her husband, J. D. Mills, who are here sued as codefendants, jointly executed a mortgage to plaintiff conveying said 60 acres of land, another 80-acre tract, and certain sawmill machinery and appurtenances. The mortgage recites that it is given to secure the payment of the mortgagors' two certain promissory notes of even date for $918.67 each, payable one in January, 1908, and one in January, 1909. It further stipulates that the mortgage is given for the purchase money of the land and machinery described. It recites also the existence of a previous indebtedness of $369.34, due by the note of said Annie B. and J. D. Mills made March 9, 1904, and payable April 1, 1907 which is included in, but not discharged by, the two notes of May 1, 1909. It does not directly appear what the small note was given for, but as plaintiff had sold the 80-acre tract of land to Mrs. Mills on March 8, 1907, for $888.69, it may be inferred that it was for part of the purchase money for that land. Nothing was ever paid on this mortgage debt, and the mortgage was foreclosed under the power on October 5, 1908, and bought in for the plaintiff by its agent; but no deed was executed to the purchaser, nor was any written memorial made of the sale. The plaintiff, who was the mortgagee and purchaser at said foreclosure sale, sued the defendants, the mortgagors, in ejectment, for the possession of the two tracts of land referred to, and the trial was had on the general issue, without plea or suggestion of payment of, or payments on, the mortgage debt. The court instructed the jury to find for the plaintiff, and there was verdict and judgment accordingly. The giving of this instruction, as well as numerous rulings on the evidence, are assigned as error. The theory of the appellant is that the debt for which the mortgage was given was not the debt of Mrs. Mills, but of her husband; and that, as the land belonged to her, the mortgage was entirely void as an attempt to secure the husband's debt.

After the plaintiff had introduced the original mortgage in evidence, it was allowed against defendants' general objection to introduce also the record of the mortgage. If it was improperly admitted, still a general objection was not sufficient to exclude it; and it was in any case harmless to defendants, as the record is an exact duplicate of the original.

Plaintiff's attorney, who superintended the foreclosure sale, testified that he bought the land in for plaintiff. Defendants objected to the statement on the ground that it was in writing, or else void. The answer was competent, and the objection itself was inapt. And, as written authority was not necessary to enable the agent to bid in the land for his principal, the question to this witness as to his authority, whether written or not, was properly excluded. Nor was this made necessary by the fact that the principal was...