New England Mortgage Security Co. v. Payne

• Decision Date: 18 June 1895
• Citation: 18 So. 164,107 Ala. 578
• Parties: NEW ENGLAND MORTGAGE SECURITY CO. v. PAYNE.
• Court: Alabama Supreme Court

18 So. 164

107 Ala. 578

NEW ENGLAND MORTGAGE SECURITY CO. v. PAYNE.

Supreme Court of Alabama

June 18, 1895

Appeal from circuit court, Marshall county; James A. Bilbro, Judge.

This was a statutory action of ejectment, brought by the appellant, the New England Mortgage Security Company, against the appellee, William E. Payne, to recover 400 acres of land which was specifically described in the complaint. The transcript contains three replications filed by the plaintiff to a special plea of defendant; but this plea is not set out in the transcript. These replications were demurred to, and the demurrers thereto were sustained; whereupon issue was joined on the plea of the general issue. The plaintiff claimed title through a mortgage, which had been executed by the defendant and his wife to the plaintiff, and which had been duly foreclosed for the failure to pay the mortgage debt; the plaintiff becoming the purchaser at the foreclosure sale. This mortgage was executed by the defendant and his wife at their home in Marshall, and the acknowledgments of their signatures were taken by one D. A. Holland, a justice of the peace in and for Blount county; but both the acknowledgment of W. E. Payne, and the separate acknowledgment of his wife, purported to have been taken in Blount county. The plaintiff introduced in evidence the mortgage, and also testimony showing that the same had been duly foreclosed by a sale under authority conferred thereby and that plaintiff had become the purchaser. The evidence for the defendant went to establish the contention of the mortgage being improperly acknowledged, and that 160 acres of the land included in said mortgage constituted the defendant's homestead. The rulings of the trial court on the evidence are sufficiently stated in the opinion. Upon the introduction of all the evidence, the court refused to give the general affirmative charge in favor of the plaintiff, but gave such a charge at the request of defendant in his favor and to each of these rulings the plaintiff separately excepted. There was judgment for defendant. The plaintiff appeals, and assigns as error the rulings of the trial court on the pleadings and on the evidence and the refusal to give the charge asked by it, and giving the charge requested by the defendant. Reversed.

Caldwell Bradshaw and Jas. E. Webb, for appellant.

O. D Street, for appellee.

HARALSON J.

1. The case was tried on the plea of the general issue. There seems to have been a special plea interposed, to which plaintiff filed three replications, but what that plea was, we are not definitely informed. The first replication purports to be one to a plea, "denying that the plaintiff, at the commencement of this action was seised of the legal title to the land described in the complaint." They each proceed upon the idea, that defendant had pleaded in one or more pleas, that the lands mortgaged lay in Marshall county, and that, while the mortgage purports to have been acknowledged before a justice of the peace in Blount county, yet, in fact it was acknowledged in Marshall, before a justice of the peace of Blount county, who went into the former county, to take its acknowledgment, and that, therefore, it was void for, the force of the pleas, if true, is sought to be avoided by the averments in the replications, that the defendant represented to plaintiff, at the time the loan was made, that the mortgage was executed in Blount, and he was estopped to deny that fact. The replications also convey the suggestion, that the special plea or pleas contained the defense, that the lands mortgaged were the homestead of the defendant, and the mortgage was void, since the wife of defendant...