Phillips v. Sewell

Bleckley, Justice. 1. Certain matters were pleaded as payments upon the1 mortgage debt. A list of the alleged payments was set out [652] in the mortgagor’s answer. Among the items was a large amount as paid by or through S. A. Anderson. At the trial, Anderson was introduced by the mortgagor to prove this payment, and on the direct examination his testimony tended to establish it. On the cross-examination, he enlarged or modified his statement in a way to make the real transaction appear, not as a payment, but as a purchase by him of an interest in the debt. He said he had taken a transfer of an interest from the mortgagee in writing, and that the writing was present in court. Thereupon counsel for the mortgagor moved to rule out the cross-examination, offering to let the direct examination go out with it if the court thought proper, but not withdrawing the same unconditionally. The court held the parol evidence elicited on the cross-examination admissible, though the transfer was in writing, and refused to exclude it. In this the court, we think, was correct. The direct examination disclosed what the witness at first called and considered a payment. The cross-examination was an amplification of his previous evidence, and when the transaction was fully described and explained, it wore the aspect, not of a payment, but of a purchase. It was not the direct object of the cross-examination to prove a purchase, but to make the witness rebut and correct his previous evidence as to payment. It -was simply equivalent to bringing round the witness to say, on better consideration, “No, 1 was mistaken, I did not pay any of the debt, but the money I delivered to the mortgagee was paid on my own account, as the purchase money of an interest in the debt.” The effect of this would be to render the direct examination null by the cross-examination — that is, to meet and negative parol evidence by other parol evidence from the same witness in the course of one and the same act of testifying. 2. Subsequently, counsel for the mortgagor offered the writing in evidence, and the court excluded it. For two reasons, we think this exclusion was improper. The first is, that though the mortgagee was not obliged to introduce [653] the paper, yet, as the witness had referred to it, and had it in court, the mortgagor had a right to show by it whether in fact it was a transfer or a mere receipt, or what it was ; and secondly, the face of the paper, as copied in the record, shows that it was relevant as an acknowledgment in writing, signed by the mortgagee, “that there are credits to be entered on said fi.,fa. heretofore made by the defendants,” etc. There was no point made on the execution of the paper, and Anderson testified that it was the transfer which he took from the mortgagee, which testimony he was competent to give, for there was no subscribing witness to the instrument. Assuming that the fi. fa. on which credits were to be entered, was a fi. fa. issued on a general judgment for the mortgage debt, and this, we think, is clearly inferable from Anderson’s evidence, the same credits ought to be allowed in foreclosing the’mortgage. The mortgagor is claiming diverse credits, and this written acknowledgment of the mortgagee indicates that some credits ought to be entered. From the record before us, it would seem that the petition and rule to 'foreclose are proceeding for the entire debt, and if so, the document ruled out by the court tends to show that the claim is broader than the real justice of the case. What credits ought to be allowed is for the mortgagor to show, notwithstanding the loose acknowledgment of the mortgagee contained in the writing, but it will be more easy to do this with the aid of the acknowledgment than without if. It tends to negative the theory that the whole debt is unpaid, and that is of some consecpience. We flunk the paper should have been admitted. Whether, in view of the transfer it contains, Anderson ought not to be made a party to the foreclosure proceeding as a usee of the petitioner, may deserve consideration by those who may have an interest in making the final record of the case speak the truth as to how the recovery is to be discharged, and who is to take the benefit of the same. Certain remarks were made by the presiding judge about leaving Anderson “out in the cold,” etc., which are [654] complained of in the motion for a new trial,, but which wo need not discuss, as there is no probability of their becoming a precedent, even if they were improper. We are reluctant to superintend the minor and informal expressions which may escape the judges in giving shape and direction to-the litigation with which they have to- deal. Imperfect ourselves, we wish to insist as little as possible on absolute perfection in. others. We think no. right was invaded or impaired by what the judge saidr and with this observation we leave the subject. 3. The court charged the jury, in effect, that the purchase of a part of a debt by a person not a party to- it, is not a payment. Surely no error can be found in this sober and sensible proposition in so far as the evidence justified any charge on this point. 4. In the list of payments pleaded by the mortgagor was one of over six hundred dollars as made by E. Faw. The mortgagor testified that he read over the whole- list to- the mortgagee, and that the latter'admitted it to- be correct, with certain specified, exceptions. The Eaw payment was not one o-f the exceptions, and there is nothing in the brief of evidence on the subject of that payment except what the mortgagor testified. Certainly there is no-hint or intimation that it was made by way' o-f purchase by Faw,. or any other person, of an interest in. the debt. Tet the court charged, no doubt inadvertently, that if such was its nature the mortgagor would not be entitled to-have it deducted. The mistake was in classing the Eaw transaction with the Anderson transaction, as if there might be similar evidence as to- bothy when the evidence was, in fact, wholly dissimilar. For this error in the charge, the judgment refusing a new trial is reversed-, i-t being apparent, and counsel for defendant in error admitting in the argument, that the jury did not allow the amount of the Faw payment. Whether the jury were otherwise wrong in their calculation need not be decided, as a wholly new calculation has to be made. It miy be well to add that where a debtor pays a thiid person [655] to pay a debt, the latter cannot purchase it in, and enforce another payment to himself. 59 Ga., 195, 350. The ground •of newly discovered evidence in the motion for a new trial is now immaterial. Judgment reversed.