Bufford v. Raney , 122 Ala. 565 ( 1898 )

HARALSON, J.

— 1. There was no merit in the objections raised to the introduction in evidence of defendant’s mortgage. It recited a debt due from the mortgagor to him, which ivas sufficient evidence of the debt. O'Connor v. Nadel, 117 Ala. 595. The harden was on the plaintiff as purchaser of the mortgaged property, to show that the mortgage debt ivas paid, and, therefore, tlie title was no longer in defendant.' — 3 Brick. Dig. 641, § 111.

2. Nor was there error in excluding from' the jury the answer of the witness, Woods, the mortgagor, to the plaintiff’s question, — “Whether or not said mortgage was given by him and accepted by defendan t for the purpose of beating Dr. Smith out of his debt, for the collection of which execution had been issued and levied on the horse?” — the answer being, that it was given at the request of defendant for the purpose of keeping Dr. Smith from making his money out of the horse. That answer may have been true, and yet it would not follow therefrom, that the debt evidenced by the mortgage was not owing. If the mortgagor owed defendant, it was a legitimate transaction for him to procure his debtor to execute to him this mortgage, to get ahead of Dr. Smith, and thereby keep him from making his money out of the horse.

3. The charge requested by plaintiff was properly refused. All that tlie evidence shows in respect to the matter referred to in the (‘barge, in its most favorable phase for plaintiff is, that the defendant acknowledged that Dr. Smith’s execution, which had been levied on the horse, was of prior and superior lien to his mortgage. The horse was not sold under execution, but plaintiff bought it at private sale from Woods, the mortgagor, by agreeing to pay and satisfy for him the judgment or execution debt of Dr. Smith, which he did, and allow him, Woods, to refund to plaintiff the money thus paid for him, and if he did not do so, that plaintiff was to pay him a further sum, which with the money advanced to discharge the execution, would make the price paid to and for him amount to $40, the value of the animal as testified by plaintiff. This transaction did not give plaintiff the lien of Dr. Smith, the execution creditor, on the horse, or any lien at all on him, but merely the title of the mortgagor, subject to the defendant’s mortgage, of the existence of which plaintiff was well informed.

4. Joe Woods, the mortgagor, testified that at the time he executed said mortgage to defendant, he was not indebted to him in any sum whatever, and Avas not indebted to him at the time he sold the horse to plaintiff, that he did OAve him afterwards for some advances but that he h¿d paid it. If this Avas true, the mortgage debt was fully paid, and this divested the title out of defendant acquired by the mortgage, and the title Avould belong in such case, to the plaintiff as purchaser of the property from the mortgagor. — Code, § 1067. But, defendant testified that the mortgage debt had not been paid, and there Avas still due on it the sum of $25. Here was a direct conflict in the evidence, and there Avas no room for the general charge as requested by defendant and given by the court. Por this error, let the judgment be reversed and the cause remanded.

Reversed and remanded.