Powell v. Crawford

• Decision Date: 31 July 1895
• Parties: POWELL v. CRAWFORD.
• Court: Alabama Supreme Court

18 So. 302

110 Ala. 294

POWELL v. CRAWFORD.

Supreme Court of Alabama

July 31, 1895

Appeal from circuit court, Dale county; J. M. Carmichael, Judge.

Statutory action of detinue by J. R. Crawford against F. A. Powell. Plaintiff had judgment, and defendant appeals. Reversed.

The defendant pleaded the general issue, and the following special pleas: "Second. For further answer to the complaint, he pleads that the plaintiff claims title to the property sued for by virtue of a mortgage, which he now holds, and that he has or claims no other title or right in and to the property sued for, than that which he claims by virtue of said mortgage; and that plaintiff has never had the possession of the property; and that the mortgage under which the plaintiff claims title and sues to recover, was procured through deceit and fraud, and is void for the fraud practiced by the plaintiff upon the defendant in procuring its execution. That some time near the first of the year 1891 defendant made arrangements with P. L. Burdeshaw to have Burdeshaw furnish him, defendant, supplies to the amount of fifty or seventy-five dollars, during the spring of the year 1891, to enable defendant to make a crop in that year; and it was agreed that defendant should make to Burdeshaw a mortgage on the crop to be grown by defendant in Dale county, Alabama in the year 1891, to secure the amount to be advanced to him by Burdeshaw as aforesaid, together with an old indebtedness which he then also owed Burdeshaw; that defendant was and in an illiterate man, unable to read or write; that when the arrangements were agreed upon, he and his wife, who was also an illiterate person, unable to read or write, went, as was agreed, to make a mortgage to said Burdeshaw; that Burdeshaw and plaintiff, in whose honesty defendant had confidence took advantage of the ignorance and illiteracy of defendant and his said wife, and falsely represented to them that the instrument prepared for them to sign was the mortgage to said Burdeshaw, which it had been agreed that defendant should make to Burdeshaw, as aforesaid; that defendant and his wife believed that Burdeshaw and plaintiff had told them the truth about the contents of the paper prepared for them to sign and not knowing that it was any other than a mortgage and note to Burdeshaw as was agreed, signed it, believing it to be such mortgage to Burdeshaw as was agreed upon; that after the maturity of the note and mortgage thus signed, defendant for the first time, learned when plaintiff presented it to him for collection, that he had been deceived into making to plaintiff a note and mortgage; and that defendant did not owe plaintiff anything on any account, and would not knowingly have made him a mortgage." "Third. For further answer he pleads that he does not know what the consideration of the said mortgage to plaintiff can be, since he does not owe plaintiff any debt or amount whatever; but, if plaintiff claims as his the said old indebtedness which defendant owed to said P. L. Burdeshaw, at the time he was deceived into executing the said mortgage to plaintiff, defendant then pleads that the said old indebtedness to said Burdeshaw consisted of the several balances left over from year to year running through several years' transactions between defendant and said Burdeshaw; that Burdeshaw had at this time been furnishing defendant money to large amounts for several years, always charging him 20 per centum per annum of usurious interest on the amount so furnished each year; and that the entire amount of the old indebtedness, which amounted to several hundred dollars, was usury; and that if the amount set out in said mortgage to plaintiff consists of the indebtedness of the defendant to said Burdeshaw, it is all usurious interest, and void for the usury except about ten dollars, and that the usury is included in the mortgage." "Fourth. For further answer to the complaint he pleads as follows: That as a part of the consideration upon which defendant was to sign said mortgage which he believed, as aforesaid, was a mortgage to said P. L. Burdeshaw, it was agreed that Burdeshaw was to furnish to defendant, to enable him to make his said crop in the year 1891, in Dale county, Alabama, such goods, wares and merchandise as defendant should want and need during the spring of the year, to the amount of fifty or seventy-five dollars' worth; that defendant planted his crop and made his arrangements in full reliance upon and faith in Burdeshaw's agreement to furnish him these goods, wares and merchandise, having executed his part of the agreement, as he thought, by making said mortgage which he believed to be a mortgage to Burdeshaw; that after Burdeshaw had furnished him about fifteen dollars' worth on this agreement, he refused to furnish him any more; that this refusal was just at a time when defendant most needed the assistance Burdeshaw had agreed...