Carlisle v. Peoples Bank , 122 Ala. 446 ( 1898 )

DOWDELL, J.

— This was an action in detinue brought by appellee against the appellant for the recovery of certain personal property described in the complaint. While the bill of exceptions recites that issue was joined on pleas 1, 2, and 7, no evidence was offered on the trial except upon plea No. 1. This plea is the general issue under the statute, (Code, 189G, section 3295), and is the same in effect and equivalent to the plea of non dcti-nct at common 1 aw. — Berlin Machine Works v. Ala. City Furniture Co., 112 Ala. 488. This plea puts in issue the right'of the plaintiff to recover. — Foster v. Chamberlain & Co., 41 Ala. 167.

The plaintiff relied for recovery on his title under a mortgage executed by the appellant, defendant in the court below, to the plaintiff. The mortgage in terms conveys the property in question, to secure a debt, evidenced by defendant’s note in the sum of $750, and also for any advances that might be made to the defendant. After this recital in the mortgage and following the description of the property conveyed, and just preceding the habendum clause, the following recital is made, to-wit: “This mortgage is given to better secure 5 notes this day given to W. B. Folmar by me, one due Oct. 1st, 1895, $750; 1896, $700; 1897, $650; 1898, $600; 1899, $550.” The bill of exceptions states that it was admitted by the plaintiff that defendant had paid the note for $750 described in the mortgage, and that no advances had been made to defendant.

On the trial the defendant testified that he gave the mortgage to secure the payment of hut one note, and that Avas the note for $750 which he had paid. That the clause in the mortgage in reference to its being given to secure five notes, was not in the mortgage when he executed it, and that the same had been inserted since the execution of the mortgage. That it was understood at the time he executed the mortgage, that he was only to give a mortgage to secure the note for $750. On motion of the plaintiff this testimony was excluded by the court, and the defendant excepted. It is a clear proposition that, if the mortgage was given to secure but the one note of $750, the payment of this note would divest the title passing by the mortgage (Code, 1896, § 1067), and be a complete defense to plaintiff’s action. It is equally clear that if the plaintiff mortgagee, without authority, inserted the clause as to the five notes after the mortgage had been executed, no possible rights or benefits could thereby be conferred on plaintiff. It is contended by appellee, that the alteration, if made as defendant states, ■was an immaterial one, and yet, with this clause out of the mortgage, with the admission of the payment of the $750 note, the plaintiff was absolutely without title under the mortgage. The alteration was material, and the testimony of the defendant which was excluded by the court, was clearly admissible under the general issue.

The bond for titles which was executed on the same day with the mortgage, and signed by both plaintiff and defendant, and containing recitals in reference to the mortgage embracing the five notes, ivas relevant and competent under the issue as to whether the mortgage had been altered after its execution.

The $750 note and mortgage were made to “The Peoples Bank.” The bill of exceptions states that, “It was proven that AY. B. Folmar (plaintiff) was doing a business under the name of The Peoples Bank, and also was doing a business under the name of W. B. Folmar.” It does not clearly appear from this, that “The Peoples Bank” and AAh B. Folmar were one and the same, and that he alone constituted The Peoples Bank. If, however, such was the fact, the legal title under the mortgage, though made to The Peoples Bank, eo nomine. vested in AY, B. Folmar. But, otherwise, if the two were not one and the same.

For the error pointed out the judgment of the circuit court is reversed and the cause remanded.