Turner v. Birchfield

Citation224 Ala. 316,140 So. 381
Decision Date10 March 1932
Docket Number7 Div. 45.
PartiesTURNER v. BIRCHFIELD.
CourtSupreme Court of Alabama

Appeal from Circuit Court, Clay County; Emmet S. Thigpen, Judge.

Action of ejectment by J. W. Birchfield against J. T. W. Turner. From a judgment for plaintiff, defendant appeals.

Affirmed.

A. L Crumpton, of Ashland, for appellant.

C. W McKay, of Ashland, for appellee.

GARDNER J.

The suit was statutory ejectment based upon a mortgage duly foreclosed. The defendant insisted that at the time and prior to foreclosure the mortgage had been paid. A number of receipts were referred to in the testimony, and two were offered in evidence by defendant, the execution of which was denied by the mortgagee, as a witness for the plaintiff, the mortgagee insisting that on those dates he gave receipts for amounts considerably less than those shown on the receipts. The issue of fact was submitted to a jury, and verdict rendered adversely to defendant, and from the judgment following he has prosecuted this appeal.

Plaintiff's evidence, consisting of the testimony of the mortgagee, and the offering in evidence of the mortgage, notes, and foreclosure deed, established prima facie a case for recovery, and the burden of proof rested upon defendant on his plea of payment. May v. Middleton, 211 Ala. 459 100 So. 640.

Counsel argue defendant's refused charge upon the assumption that it presents the question as to burden of proof as to alteration of the instruments, and cite numerous authorities among them Bouldin v. Barclay, 121 Ala. 427, 25 So. 827; Ehl v. Watkins Med. Co., 216 Ala. 69, 112 So. 426; 1 Greenl. on Ev. § 564; Barclift v. Treece, 77 Ala. 528; Glover v. Gentry, 104 Ala. 222, 16 So. 38; Whitewater Lbr. Co. v. Langford, 216 Ala. 510, 113 So. 525; Davis v. Carlisle,

6 Ala. 707; §§ 7717 and 7669, Code, 1923; 2 Corpus Juris 1267-1282. It is the rule, however, that a requested charge should be so framed that it will not mislead, and that the principle of law involved be correctly stated or expressed. Eagle & Phoenix Mfg. Co. v. Gibson, 62 Ala. 369; Thomas v. State, 124 Ala. 48, 27 So. 315; Brown v. State, 46 Ala. 175. A reading of the refused charge discloses it is not confined to the question argued and, indeed, the word "alteration" is not used. The charge is of much wider scope, and, in view of the burden of proof as to payment resting upon defendant, it had a decided tendency to mislead, which fully justified its refusal. Herring v. L. & N. R. R. Co., 203 Ala. 136, 82 So. 166; B'ham. Rwy. & Elec. Co. v. Wildman, 119 Ala. 547, 24 So. 548; 27 Ala. & So. Dig. page 200.

Moreover the trial court in the oral charge instructed the jury that the "burden...

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