Askew Bros. v. Steiner & Lobman

SOMEBVILLE, J. — The several written instruments which were offered in evidence by the plaintiffs, and.excluded by the court, were properly excluded. They were ail attested by subscribing witnesses, one or more of whom should have been produced to provb the execution of the writings to which they had respectively affixed their attesting signatures. This rule is a familiar and fundamental one, and applies in all cases where the instrument necessary to be proved is the foundation of the party’s claim, or he is privy to it, or where it purports to he executed by his adversary; but not wdiere it is merely collateral, or inter alios under or from whom neither party seeks to claim any right, title or interest. It is well settled, that the mere admission of the grantor of a deed, or of the maker of any instrument, that he executed it, does not dispense with the necessity of producing an attesting or subscribing witness, unless such admission be made in judicio, or in open court. — 1 (Ireenl. Ev. § 569 ; Russell v. Walker, 73 Ala. 315; Jenks v. Terrell, adm’r, Ib. 238 ; Ellerson v. State, 69 Ala. 1; Patterson v. Kicker, 72 Ala. 406. The writings in question came within this rule, and not within the influence of section 5036 of the Code, which authorizes the admission in evidence, without any proof of execution, only of written instruments which purport to be signed by the defendant, his agent or attorney, and constitute the foundation of the particular suit, and the execution of which is not denied by plea under oath. — Code, 1876, § 3036. The plaintiff’s only title to the mule in controversy, so far as shown by the evidence, was the mortgage executed by Mc-Clendon and Wright, on January 7th, 1880, to the defendants, and assigned by the mortgagees to the plaintiffs. It is clear that, if the mortgage debt was discharged, prior to the commencement of the suit, the lien of the mortgage would be extinguished, and the action must necessarily fail, because rio title to personal property can be shown under a satisfied mortgage. — Burns v. Campbell, 71 Ala. 271; Herman on Chat. Mortg. § 168; Dryer v. Lewis, 57 Ala. 551. The first [222] charge given at the request of the defendants was a mere assertion of this principle, in substance, if not in language. The undisputed evidence, the credibility and weight of which was submitted to the jury, shows that the mortgage was satisfied. The plaintiffs aré shown to have received other property covered by the same mortgage, admitted to be of a valuation greater than the mortgage debt. It makes no difference to which of the mortgagors, McClendon or Wright, this property belonged. The plaintiffs had no right to apply it to any other than the mortgage debt, without the consent of both of the mortgagors. The rule is a just one, that a mortgagee holds the mortgaged property in trust for the payment of the mortgage debt, and where he takes possession of it, and sells or converts it to his own use, the law satisfies the debt. — Levystein v. Whitman, 59 Ala. 345. In Steele v. Mealing, 24 Ala. 285, it was held, that a mortgage given to a surety, to indemnify him against a particular debt, so far enured to the benefit of a co-surety, as to prevent the mortgagee from applying the proceeds of the mortgaged property to any other than the mortgage debt, to the prejudice of his co-surety. Admitting that the mule John belonged to McClendon, he and the plaintiffs had no right to dispose of the property, without the consent of Wright, so as to appropriate it to the satisfaction of any other debt than the particular one for the security of which it had been mortgaged. The charges of the court are free from error, and the judgment is affirmed.