Cunningham v. Milner

BBIOKELL, O. J. The objection to the evidence offered by the appellee, to show the want of consideration of the mortgage under which the appellant claimed title, or that the real consideration was variant from that expressed, was not well taken. The appellee was not a party to the mortgage, and had no agency in its execution; and he is not blamable if it speaks falsely, or fails to speak tbe whole truth. Tbe rule on wbicb appellee relies, that parol evidence shall not be received to contradict or vary the terms of a written instrument, applies only in controversies between tbe parties to such instruments, or their privies. — 1 Green. Ev. § 279; Venable v. Thompson, 11 Ala. 147. Nor can we see that tbe evidence offered by appellee, to identify tbe mule for wbicb suit was brought, as the mule conveyed by tbe mortgage to him, was objectionable. Tbe charge requested was properly refused. Tbe failure or refusal of tbe appellee to disclose tbe existeuce of a claim to tbe mule, when it was demanded of him, may have been a fact of some importance, in determining whether tbe claim asserted was fair and just, or was fictitious. It could not, as tbe charge affirmed, estop him from interposing it in defense of tbe suit. Tbe judgment is affirmed.