Torbert v. McFarland

• Court: Alabama Supreme Court
• Writing for the Court: ANDERSON, J. ANDERSON, J.
• Citation: Torbert v. McFarland, 172 Ala. 117, 55 So. 311 (Ala. 1911)
• Decision Date: 19 January 1911
• Parties: TORBERT v. MCFARLAND.

55 So. 311

172 Ala. 117

TORBERT v. MCFARLAND.

Supreme Court of Alabama

January 19, 1911

Rehearing Denied April 27, 1911.

On Rehearing.

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

Detinue by J. W. Torbert against Sam McFarland. From a judgment for defendant, plaintiff appeals. Affirmed.

The pleas were non detinet, and that the property sued for was claimed by plaintiff under a mortgage, and he suggests that the jury ascertain the amount of the mortgage debt, if any there be due from the defendant to the plaintiff under said mortgage.

The deputy sheriff, testifying, stated that he took the property into his possession under a writ. On cross-examination he was asked by the defendant what he did with it. Objection was interposed to the answer, and overruled, and he answered "I turned it over to Mr. Myhand." Objection was interposed to the question as to "Who is Mr Myhand?" and to the answer, that "Mr. Myhand is the agent of J. W. Torbert." Objection was also interposed and overruled to the question, "You delivered it to Mr Myhand, as the agent of Mr. J. W Torbert?" and the answer, "Yes, sir." Further testifying, the deputy sheriff stated, over objection, that under orders from the sheriff he got the property, took it back to the place where he first obtained it, at Mr. McFarland's, and left it there; that he did not get the property from Mr. Myhand, and did not get it where he left it. Objection was interposed and overruled, to the question to the deputy, "Where did you get it from?" and his answer: "I found the corn and fodder in the barn at a place where Mr. Godfrey lives. He was one of Mr. Torbert's tenants. It was a different place from where I left it. And I found the cotton seed in a ginhouse." Objection was interposed, and overruled, to the question, "Was the cotton seed mixed with other cotton seed?" and the answer: "I did not see the cotton seed in the house. I left that with Mr. Myhand to load." Also objection was interposed, and overruled, to the question and answer as to where he got the mare, and that he got Mr. Myhand's son to go to Mr. Torbert's plantation, about five miles distant, to get the mare. The other related to the question of money advanced, etc., on the mortgage, and as to payments made thereon.

Mr. Lewis, testifying as to the accounts, stated that, if the account was in his handwriting, he took the book and to the best of his ability copied the figures and letters and dollars and cents from the book to the account. The court sustained objection to this statement.

The following charges were given for the defendant: (1) "I charge you that you must give the defendant credit for the value of whatever property sued for that you find the plaintiff received and accepted." (2) "I charge you that you must give the defendant credit for the difference in the value of corn that was taken from him and the value of that which was returned."

O. S. Lewis, for appellant.

H. P. Merritt, for appellee.

ANDERSON J.

Section 3789 of the Code of 1907 provides that, in actions of detinue by a mortgagee, or his assignee, against a mortgagor or one holding under him, or by a vendor who has made a conditional sale reserving title until the entire purchase money is paid or his assignee, against his vendee or one holding under him, the defendant may, upon suggestion, require that the jury ascertain the amount of the mortgage debt, etc. Section 3791 provides that, when the action is brought by the mortgagee or conditional vendor or assigns, the defendant may plead any matter of defense, including usury, that he might have pleaded if the action had been on the debt, except the statute of limitations. As an original proposition, the writer would be of the opinion that section 3789 was intended merely to authorize redemption in a court of law, by permitting the defendant to pay up what was due and retain the property, but in order to reduce the amount the matters relied on should be specially pleaded as provided by section 3791. These statutes, however, have received a different construction in the case of Hooper v. Birchfield, 115 Ala. 226, 22 So. 68, and have been readopted without change, in this particular, and the interpretation given is established law, which must control in the consideration of this case. It appears that the court held, in this Hooper Case, supra, that, if the purpose is to show no debt due, "the facts relied on to this end should be set forth by special pleas." Says the court, however, in discussing the statutory suggestion as provided by section 3789 of the present Code: "On the other hand, where the question arises upon defendant's suggestion, requiring that the jury ascertain the amount of the mortgage debt, and is, not whether any debt exists, but as to the amount of the admitted indebtedness, any fact going to a reduction of the debt named in the instrument or claimed to have been incurred thereunder, such as partial want or failure of consideration, partial payment, usury, setoff, or recoupment in part, would be proper for the consideration of the jury; and it would seem that any and all of these defenses pro tanto to an action on the obligation to pay money which the mortgage purports to secure could be brought forward in the action to recover the mortgaged property under the defendant's statutory suggestion--his requirement 'that the jury ascertain the amount of the mortgage debt'--without being specially pleaded in any way; for, while the statute clearly contemplates that all matters of defense against the obligation to pay money may be...