McClendon v. Equitable Mortgage Co. , 122 Ala. 384 ( 1898 )

TYSON, J.

— -This Avas a real action of ejectment in AAdiich appellees were plaintiffs, and appellants, James McClendon and Jonathan Hazel, Avere defendants. The only error assigned by Hazel Avas the refusal of the court, upon objection of plaintiffs, to grant his motion that McClendon, his co-defendant, ayIio Avas his landlord, be made sole party defendant. The evident object of this motion Avas to secure his discharge from any further proceedings in the cause, thereby relieving him of any liability to plaintiffs for rent in arrears at the commencement of the suit and such as might accrue during the continuance of his possession, should the plaintiffs succeed in recoAmring a judgment for the lands.

The manifest purpose of section 1534 of Code of 1896 (Code of 1886, § 2700) Avas to confer upon the tenant, Avhen sued in an action of ejectment, the right, Avhich did not exist at common law, of compelling his landlord to appear and defend his title, and to relieAU the tenant of the burden of litigating with the plaintiff a matter in AAdiich he has no interest other than to pay his obligation of rental to the person who can give to him a legal acquittance. This view is accentuated by section 1535 of Code of 1896 (Code of 1886, § 2701), prescribing and limiting the liability of the tenant to rent in arrear at the commencement of the suit, and that which may accrue during the continuance of his possession under his lease or license. — Wisdom v. Reeves, 110 Ala. 418.

2. The defendant McClendon filed the plea of not guilty and a special plea, termed by his counsel as a plea of non est factum, alleging that the mortgage or other instrument upon AAdiich plaintiffs rely as the foundation of their title was not executed by him or any one authorized to bind him in, the premises, which plea was verified. To this special plea the court sustained a demurrer. The plea of the general issue imposed upon the plaintiffs the burden of proving, unless self-proving, the execution of every conveyance upon which they relied to show title in them. And such of those executed by defendant as appeared to be properly acknowledged by him, their execution could have been assailed by him under the plea of not guilty by proving the requisite facts to avoid the legal effect of the acknowledgment. The only appropriate plea in the trial of this action is “not guilty,” and under it, anything that operates as a bar to the action may be given in evidence. — Smith v. Cox, 115 Ala. 503; Richardson v. Stephens, 114 Ala. 238; Bynum v. Gold, 106 Ala. 427. Indeed it appears that the defendant was permitted to introduce evidence tending to prove every fact alleged in his special plea.

3. The mortgage introduced in evidence by the plaintiffs purported to be signed and properly acknowledged by the defendant and his wife. It appears to have been executed on the 30th day of September, 1889, to the Equitable Mortgage Company of Kansas City, conveying the land in controversy to secure the payment of a promissory note, of even date, executed by the defendant in the sum of $3, 708.75, due on the 1st day of October, 1894, bearing interest from date at the rate of 6 per cent per annum, which interest was payable annually on the 1st day of October in each year, and evidenced by five coupons attached to said note executed by the defendant. It contained a power of sale authorizing, after default, the Equitable Mortgage Company to sell the land at public sale to the highest bidder at the door of the courthouse of Etowah county, after advertising time, terms and place of sale by posting written notices thereof in at least three public places in said county, one of which shall be at the court house door of said county, and upon such sale shall execute and deliver a deed conveying the property sold to the purchaser. The testimony showed that three of the notices of the sale containing the requisite recitals were posted, one on the bulletin board at the court house door in Gadsden, EtoAvah county, another at tlie post office in Gadsden, and tlie third at some other public place in the town of Gadsdén The introduction of these notices in evidence was objected to by defendant because irrelevant and because not posted upon the land to be sold. The location for the posting of only one notice was provided for in the mortgage. This was complied with. The mortgage failed to designate the location for the posting of the other two, but in general terms required the mortgagee to post them at public places in the county. The effect of this provision ivas to authorize the mortgagee to select the places, and the only limitation upon this authority was that he must post them at public places in the county. The posting of one of them at the post office and the other at some public place in the town of Gadsden was a sufficient compliance.

The evidence further showed that the land was exposed for sale and that the Equitable Security Company bought it, to whom a deed was executed by the Equitable Mortgage Company. This deed was signed by the Equitable Mortgage Company and its corporate seal was affixed by Charles N. Fowler, president, and also signed by Charles N. Fowler and James M. Gifford, receivers. Tins deed was objcted to by defendant because it shows on its face that the corporation is in the hands of a receiver and shows no order of court authorizing the receiver to make it. Conceding that the recitals of the deed showed at the date of its execution that the company was in the hands of a receiver, in the absence of an order of the court or a- conveyance, by the company divesting it of the legal title to the lands conveyed by the mortgage, the legal title remained in this company until it signed and delivered the deed to the Equitable Security Company.

J. The only matter of controversy upon the trial was the execution by the defendant and his wife of the mortgage to the Equitable Mortgage Company, which purported to have been acknowledged by each of them before the probate judge of Etowah county and duly recorded. This authorized its introduction in evidence. It was prima facie a conveyance of the lands to this company and shifted the onus upon the defendant of proving such a state of facts as would overcome the legal effect of the acknowledgment. The testimony offered by defendant tended to show that he and his wife never signed the mortgage, nor appeared before any officer, nor made any acknowledgment whatever, and that the certificate of the probate judge was untrue. It further tended to show they executed to the Atlanta Trust & Banking Company of Atlanta, Ga., a mortgage about the date this one bears date, upon which he obtained a loan for the same amount secured bj this mortgage.

The defendant on cross-examination admitted that he executed the note, the interest coupons secured by this mortgage and a receipt to the Atlanta Trust & Banking Company of Atlanta, Ga. for “$3,708.75 less commissions as agreed, being in full for loan obtained by them for me [him] from the Equitable Mortgage Company,” which receipt and interest coupons were introduced in evidence by plaintiffs without objection. The defendant further testified that on the 30th day of September, 1889, being the date of the mortgage, the land described in the mortgage was his homestead and he resided on it with his family, and that “he thought his dwelling stood on the following 1G0 acres of land, to-wit: S. W. ¿ of Sec. 13, T. 11, K. 5.” There was some testimony tending to show that defendant’s wife signed her name by mark. Her signature to the mortgage appears to have been made by her as though she wrote it. The plaintiff offered several witnesses in rebuttal whose testimony tended to contradict the testimony offered by the defendant on every material point.

In view of the admissions by the defendant of the genuineness of his signature to the receipt to the Atlanta Trust & Banking Company and the interest coupons and the improbability of his having executed a mortgage to the Atlanta Trust & Banking Company, which was shown to have been merely his agent for negotiating the loan, to secure a debt he confessedly owed the Equitable Mortgage Company, there was no error in permitting the plaintiffs to introduce the note for $3,708.75, exe- . cuted by him which was secured by this mortgage.

This brings us to a consideration of the charges given in writing at the request of the appellees and those refused to appellant. Charges 1 and 4 assert that if Mc-Clendon and wife appeared before the officer and acknowledged their signatures to the mortgage, the mortgage was valid although neither of them actually signed their names. The acknowledgment hy them, if found to be true by the jury, was a sufficient recognition and adoption by them of the signatures as their own —Lewis v. Watson, 98 Ala. 479.

Charges 2 and 3 given at the request of the appellees were proper. They are not subject to die criticism which appellants’ counsel contend for. Their insistence is that 160 acres of the land ivas the defendants’ homestead, and if the wife did not sign the mortgage, it was void as to this portion. The answer to this is, the charges do not instruct the jury as to the quantity of land the plaintiff would be entitled to recover and the mortgage was not void as to the remainder of the tract even though she had not signed it. — De Graffenried v. Clark, 75 Ala. 425; Marks, Rothenberg & Co. v. Wilson, 115 Ala. 561.

Charges 1, 2 and 3 refused to appellant were misleading. Charge 4 was abstract. Charge 5 instructs the jury if they believe the defendant signed the mortgage hut that his wife did not, they must allow the homestead of 160 acres, the description of which is S. W. J of Sec. 13, T. 11, It. 5. It will he observed that while the proof showed that the defendant thought his dwelling was upon this quarter section there is an entire absence of evidence as to its value. Pretermitting a discussion of the question as to whether or not the defendant would have been required to select this quarter section as his homestead, since it was adjacent to the other lands sued for, it is very clear that its value should have been shown. The statute not only limits the area to 160 acres but its vaiue to $2,000. — Oocle of 1896, § 2033 (Code of 1886, § 2507).

Charge 6 was bad in many respects. It instructed the jury to find a verdict for defendant should they believe that the wife did not execute the mortgage; moreover, it in effect instructs them to find for tbe defendant notwithstanding they believed the wife acknowledged her signature to the mortgage before the probate judge.

Charge 7 ignored the principle announced in Lewis v. Watson, 98 Ala. 479, supra.

Charge 8 was misleading, argumentative and invaded the province of the jury.

We find no error in the record.

Judgment affirmed.