Torbert v. McFarland
Supreme Court of Alabama
Detinue. Appeal from Macon Circuit Court. Heard before Hon. S. L. Brewer. Detinue by J. W. Torbert against Sam McFarland. From a judgment for defendant, plaintiff appeals. The pleas were non detinet, and that tbe property sued for was claimed by plaintiff under a mortgage, and be suggests that tbe jury ascertain tbe amount of tbe mortgage debt, if any there be due from tbe defendant to tbe plaintiff under said mortgage.
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Detinue. Appeal from Macon Circuit Court. Heard before Hon. S. L. Brewer. Detinue by J. W. Torbert against Sam McFarland. From a judgment for defendant, plaintiff appeals. The pleas were non detinet, and that tbe property sued for was claimed by plaintiff under a mortgage, and be suggests that tbe jury ascertain tbe amount of tbe mortgage debt, if any there be due from tbe defendant to tbe plaintiff under said mortgage. Tbe deputy sheriff, testifying, stated that be took tbe property into- bis possession under a writ. On crossexamintaion be was asked by tbe defendant what be did with it.…
1Opinion
*124On Rehearing.
ANDERSON, J.-
Counsel for appellant insists that the statutory suggestion does not contemplate or authorize an entire extinguishment of the mortgage debt, but only a reduction of same; that is the suggestion does not deny that something was due on the mortgage. It may be that, under the suggestion alone, the defendant cannot question the once existence of the mortgage debt; but, as we held in the Hooper Case, supra, the defendant conld show, under the statutory suggestion, any fact going to a reduction of the debt named, such as partial failure of consideration, partial payment,…
2Cases cited1 opinion
- Feagin v. PearsonSupreme Court of Alabama · 1868