Hamilton v. Griffin , 123 Ala. 600 ( 1898 )

DOWDELL, J.

This was an action by appellee against appellant to recover the statutory penalty for the alleged cutting by the appellant of certain trees on appellee’s land. Among other defenses set up by the defendant in the court below, he pleaded as a set-off to plaintiff’s action a subsisting judgment in his favor against plaintiff .in a justice court. To this plea a demurrer Avas sustained by the court, Avhicli ruling is now assigned as one Of the errors in the record.

The action being for the recovery of a penalty given and fixed by the statute, is an action in debt. — Code, 1896, § 4137; Rogers v. Brooks, 99 Ala. 31; Strange v. Powell, 15 Ala. 452.

The appellant’s judgment in the justice court being a subsisting demand, at the time of the suit commenced by appellee, and upon Avhieh the appellant could have maintained his action in debt in the circuit court against appellee, was clearly a mutual debt Avithin the meaning of the statute (Code, 1896, § 3728), and proper subject matter of plea of set-off.—Weaver v. Brown, 87 Ala. 533.

The demurrer to the plea of set-off Avas not well taken, and the court erred in sustaining the same.

It was shown upon the trial by the testimony of the plaintiff, that he Avas an adopted son of Jacob W. Griffin. No objection Avas raised to this mode of proving his adoption, and the failure to'offer in evidence the proceedings had in the probate court for his adoption cannot now for the first time be raised on appeal. So far as appears from the record it seems not to have been a disputed question.

By the provisions of section 367 of the Code the adopted child is “made capable of inheriting the estate of the declarant.”

Jacob W. Griffin died seized and possessed of the lands upon which the alleged cutting was done. The plaintiff acquired title by inheritance, as the adopted son, and, of course, succeeded to the same right and title held by his adopted father at the time of his decease.

There was evidence offered by the defendant, to the effect that Jacob W. Griffin in his lifetime, on the 28th January, 1889, executed a mortgage to the British & American Mortgage Co. on a certain forty acre tract of ■the land in question, and that the debt which the mortgage was given to secure was unsatisfied at the time of the alleged cutting of timber.

It.was decided by this court in the case of Allen v. Kellam, 69 Ala. 447, that in an action of ejectment brought by the mortgagor, against any other person than the mortgagee, it is no defense that the legal title is in the mortgagee, and the law day of the mortgage has arrived; citing Denby v. Mellgrew, 58 Ala. 147; Duval’s Heirs v. McCloskey, 1 Ala. 708; Scott v. Ware, 65 Ala. 174; Wilson v. Troup, 14 Am. Dec. 458; 1 Jones Mortgages, § 11.

In Denby v. Mellgrew, supra, it is said: “As to all others, than the mortgagees, and their privies, the mortgagor or his privies in estate may be regarded as the owners of the fee — strangers may not set up the mortgage as an outstanding title,.to bar entry, or defeat an action for the recovery of possession.”

The same principle is applicable in the present action for the recovery of penalty under the statute for cutting-trees upon the land of'the mortgagor.

There was no error in the part of the oral charge excepted to by the defendant. Nor was there any error in the refusal to give written charge numbered 1 requested by defendant. There was evidence tending to show that defendant had cut trees on the north half of the northwest quarter of section 17,- township 15, range 5, hence there was no error in refusing written charge No. 2 asked by defendant.

For the error in sustaining the demurrer to defendant’s plea of set-off, the judgment of the circuit court must be reversed and the cause remanded.

Reversed and remanded.