Claraday v. Abraham

SAYRE, J. The complaint folloAvs the Code form in ejectment, except that in the caption plaintiff describes himself as trustee, thus indicating a beneficial OAvner [132] ship of the land sued for in another. Causes in ejectment are determinable upon the legal title, and are none the less so when there is a separation of the legal and equitable titles. It would seem to be scarcely necessary to say that the statute requiring suits on contracts for the payment of money to be prosecuted in the name of the party really interested has no relation to suits in ejectment.- — Dane v. Glennon, 72 Ala. 160. The land sued for is described according to the government survey, and concludes as follows : “Less one and one-half acres in the north-east corner of the west half of south-east fourth of said section twenty-one.” The same description occurs in the mortgage upon which plaintiff’s title was based, and which will be noticed in another connection. This description identifies the property sufficiently to pass the legal title. The exception, if anything, is void. — Frank v. Myers, 97 Ala. 437, 11 South. 832; Loyd v. Oates, 143 Ala. 321, 38 South. 1022, 111 Am. St. Rep. 39. If there was error in striking defendant’s several pleas in bar, it was an error -of method merely, and did not prejudice the appellant’s defense. The case was properly tried on the plea of not guilty under which all facts going in denial of plaintiff’s right of recovery were provable, and which was, indeed, the only appropriate plea in bar. — Bynum v. Gold, 106 Ala. 427, 17 South. 667; Richardson v. Stephens, 114 Ala. 288, 21 South. 949. Appellee, plaintiff below, showed title as a mortgagee in a mortgage executed by defendants and a deed executed and delivered to him upon foreclosure proceedings in pursuance of the mortgage. Appellants offered to prove that, being'unable to read the mortgage for themselves, they executed the same in reliance upon appellee’s false and fraudulent representation as to its [133] contents. This was not an inquiry into the consideration for the mortgage, but was a denial of the valid execution of the mortgage aaíiícIi lay at the foundation of the plaintiff’s title, and, if true in fact, Avas available as a defense against that title at law as Avell as in equity, no question of bona fide purchaser intervening. —Swift v. Fitzhugh, 9 Port. 39-63; Foster v. Johnson, 70 Ala. 249; Smith v. Kirkland, 81 Ala. 345, 1 South. 276; Brown v. Hunter, 121 Ala. 210, 25 South. 924. The court committed error in excluding this testimony, and for this the judgment must be reversed. No question is made about it, but Ave think it Avell to say that, if plaintiff should have a verdict on another trial, he avüI do Avell to look to his judgment. In this record there is a judgment for costs, but as to the land there is nothing more than a recital of the jury’s finding. — Bell v. Otts, 101 Ala. 186, 13 South. 43, 36 Am. St. Rep. 117. Reversed, and remanded. All the Justices concur.