Thompson v. Greene & Co. , 85 Ala. 240 ( 1887 )

CLOPTON, J.

In this suit, which is a statutory action for the recovery of personal property brought by appellees, the defendant suggested that the plaintiffs derived title from a mortgage, and put in issue the amount due thereon. No other plea was filed, nor defense interposed. The statute in force at the time the suit was commenced provided: “That in suits where the title of the plaintiff is derived from a mortgage, the defendant may put in issue the amount due upon the mortgage, and may also plead and give in evidence any matter that might have been pleaded and given in evidence had such action been to recover the debt incurred by such mortgage; and should the jury find for the plaintiffs, then upon payment of such amount, besides costs, within thirty days thereafter, the defendant shall have the title and possession of the property.” — Acts 1882-83, p. 31. The suggestion was tantamount to an admission of record, that plaintiffs had title to the property, unless it had been divested by payment of the mortgage debt, leaving only the issue, whether any, and what amount, was due on the mortgage. The purpose of the statute is to exempt the mortgagor from a compulsory restoration of the property, by paying the amount which may be found due on the mortgage, and the costs of suit.

During the pendency of the action, the parties, by agreement in writing, but without an’order of court, submitted the determination of the amount due on tbe mortgage to five selected persons as arbitrators, who made an award. On motion of plaintiffs, tbe award was made tbe judgment of tbe court; and a judgment was thereupon rendered in favor of tbe plaintiffs for tbe property, wbicb provided that it might be satisfied by paying tbe amount awarded by tbe arbitrators. Tbe defendant was present by bis attorney, and made no objection to tbe judgment. Tbe submission to arbitrament was equivalent to an agreement that tbe sum awarded by tbe arbitrators should be regarded as tbe agreed amount due on tbe mortgage; and allowing it to be entered in tbe judgment-entry, without objection, was in tbe nature of a confession of judgment for such sum, and, in connection with tbe admission of record that tbe plaintiffs bad title to tbe property, dispensed with any necessity of submitting to a jury the issue of either title or amount due. Tbe sole reason for requiring an assessment of tbe value of tbe property is, that tbe defendant may discharge himself from tbe operation of a distringas, in tbe event tbe property can not be produced. Miller v. Jones, 29 Ala. 174. Tbe reason does not exist, when tbe suit is by a mortgagee against tbe mortgagor, and tbe amount due on tbe mortgage is put in issue. In such case, tbe statute relieves tbe mortgagor from compulsory restoration, if be pays tbe amount found to be due on tbe mortgage. Tbe failure to assess tbe value, furnishes tbe defendant no cause of reversal; it does not, and can not injure him. Tbe statute gives tbe plaintiff tbe right to compel tbe restoration of tbe property, when practicable, by a writ of distringas, or by motion for an attachment.: — Code, 1886, § 2723. Tbe provision of tbe judgment, that a writ of possession be issued, may be regarded as surplusage, conditioned as it is on the failure of defendant to pay tbe amount due on tbe mortgage within tbe time prescribed. There is nothing in tbe judgment of wbicb tbe defendant can complain.

Affirmed.